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Attorney General Barr Discusses The DOJ’s Cooperation And Coordination With The SEC

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The Department of Justice and the Securities and Exchange Commission are separate law enforcement agencies.

However, in certain areas – including the Foreign Corrupt Practices Act – the law enforcement agencies often work together.

In this recent speech, Attorney General William Barr discussed the DOJ’s cooperation and coordination with the SEC.

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DOJ Releases Memo Titled “Evaluating A Business Organization’s Inability To Pay A Criminal Fine Or Criminal Monetary Penalty”

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Prior posts here and here highlighted several Foreign Corrupt Practices Act enforcement actions in which a company received a reduction in the settlement amount based on a claimed inability to pay. In certain instances, it appears as if the DOJ / SEC were duped (see here for example).

Thus, yesterday’s release of this non-binding DOJ policy memo titled “Evaluating a Business Organization’s Inability to Pay a Criminal Fine or Criminal Monetary Penalty,” while not FCPA specific, is FCPA relevant.

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Former DOJ FCPA Unit Chief Duross On The “Sneaky Sh*t” Accounting Provisions And Other Things Heard On The Conference Circuit

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As highlighted in prior posts here, here and here, it is always interesting when former DOJ or SEC FCPA enforcement officials travel the conference circuit and make statements that undermine or contradict things they said while at the DOJ or SEC.

From approximately 2010 to 2014, Charles Duross was the Chief of the DOJ’s FCPA Unit. Currently a partner at Morrison & Foerster, Duross recently appeared on a panel at this ABA event.

At approximately the 14:40 mark of the video, Duross mentioned the FCPA’s accounting provisions and called them “sneaky sh*t” and said that “everybody talks about the bribery piece, if your client is publicly traded what you care about is that thing [the accounting provisions] because it is the books and records and internal controls and the truth is – and I hope nobody from the SEC is in the room – the SEC has long left the moorings of what the statute actually means. […] The SEC has interpreted that today to mean that if there is anything that has ever gone wrong in your business period, like you have not devised and maintained an effective accounting control, its ridiculous, but that is the current status I am just telling you the practical sh*t.” (Duross used the “sh*t” word several times during his presentation).

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DOJ Deputy Assistant Attorney General Miner On “The Two Primary Goals Of White Collar Criminal Enforcement” (With Commentary)

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It’s mid-September which means a few things: the days are getting shorter, the trees are beginning to show color, and DOJ and SEC enforcement officials are on the speaking circuit.

Earlier this week it was SEC Chairman Jay Clayton (see here for the prior post) and yesterday it was DOJ Deputy Assistant Attorney General Matthew Miner who spoke on the two primary goals of white collar criminal enforcement: “(1) to deter legally non-compliant behavior and punish it where it does occur; and (2) to encourage greater compliant behavior, including creating a more level playing field for those who play by the rules.”

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SEC Chair Clayton Says That “In Many Areas Of The World, Our [FCPA] Work May Not Be Having The Desired Effect”

Jay Clayton

These pages have long posed the question of whether the Foreign Corrupt Practices Act has been successful in achieving its objectives. (See here for a recent law review article titled “Has the FCPA Been Successful in Achieving Its Objectives” – see also here for FCPA Flash podcast episodes on the topic).

These pages have also long posed the question of whether country exits in the aftermath of FCPA scrutiny or enforcement are a good thing (as the government often seems to suggest) or rather a bad thing. (See here for numerous posts).

Yesterday, in this speech, SEC Chairman Jay Clayton discussed the same topics and offered candid observations that seemingly conflict with much of the government’s FCPA enforcement rhetoric over the last several years.

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