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FCPA Flash – A Conversation With Neil Smith (Former Senior Counsel In The SEC’s Enforcement Division) About SEC FCPA Enforcement

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Neil Smith. On July 14th, Smith left the SEC where he served as senior counsel in the Enforcement Division for more than six years and where he was also a member of the SEC’s FCPA Unit. In the podcast, Smith (currently a partner in the Boston office of K&L Gates) discusses SEC remedies in FCPA enforcement actions, the SEC’s theory of enforcement around the FCPA’s internal controls provisions, the impact of the Supreme Court’s recent Kokesh decision on SEC FCPA enforcement, and changes to the FCPA and FCPA enforcement that he would like to see.

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Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By MTS Systems

MTS

This post two weeks ago addressed the same topic as today’s post and quite frankly I am growing tired of writing this same general post for what seems like the umpteenth time. However, until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the “declining” enforcement agency publicly state, in a thorough and transparent manner, the facts the company disclosed and why the “declining” agency did not bring an enforcement action based on those facts.

As highlighted in this March 2012 post, Minnesota-based MTS Systems Corp., a global supplier of test systems and industrial position sensors, disclosed:

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Rebooting A Long-Standing FCPA Proposal In The Aftermath Of Newmont Mining’s Recent Disclosure

proposal

In the aftermath of a recent Foreign Corrupt Practices Act disclosure by Newmont Mining, this post reboots a proposal first suggested in August 2010 (see here), further proposed in August 2016 (see here), and proposed again in March 2017 (see here).

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the “declining” enforcement agency publicly state, in a thorough and transparent manner, the facts the company disclosed and why the “declining” agency did not bring an enforcement action based on those facts.

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Khuzami, A Signatory Of The 2012 FCPA Guidance, Calls For Additional FCPA Guidance or “Changing” The “Somewhat Controversial” FCPA

khuzamikirkland

You really can’t make this one up and there is a reason why, unfortunately but justifiably, many view Foreign Corrupt Practice Act enforcement with cynicism.

In 2012, Robert Khuzami was head of the SEC’s Division of Enforcement when the SEC, along with the DOJ, issued FCPA Guidance.

The Guidance was signed by two individuals: Khuzami and then Assistant Attorney General Lanny Breuer.

Just above Khuzami’s signature, the Guidance states:

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Rep. Perlmutter, Once Again, Introduces FCPA Reform Bill, But This Time Goes Political

perlmutter

U.S. Representative Ed Perlmutter (D-CO) is persistent.

In 2009, he introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail. (See here and here for prior posts). In 2011, he again introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail. (See here for the prior post). In 2016, he again introduced the “Foreign Business Bribery Prohibition Act” in the House to no avail (See here for the prior post).

Last week, Perlmutter once again introduced the “Foreign Business Bribery Prohibition Act” in the House (H.R. 1549), but this time he attempted to make a political statement.

Even though H.R. 1549 is substantively the same bill as Perlmutter introduced in 2009, 2011 and 2016, the supposed purpose of H.R. 1549, as stated in his press release, is to “help stop corruption and foreign bribery under the Trump Administration.”

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