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Former Och-Ziff Executives To Mount A Defense Against SEC’s FCPA (And Related) Claims

cohen

I am not suggesting that the following is a very meaningful statistic, but it is a fact: there has been more FCPA enforcement in the first week of the Trump administration than the first week of the Obama administration.

But then again “assigning” to the Trump administration yesterday’s SEC enforcement action against Michael Cohen (pictured) and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff is foolish just as it is foolish to “assign” FCPA enforcement in the first months (indeed the first year) of the Obama administration to the Obama Administration.

Yesterday’s enforcement action is not surprising as it was fairly obvious (as detailed in this prior post) that the main actors in the Och-Ziff matter were Cohen and Baros (even though not specifically named in the September 2016 resolution documents).

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DOJ Individual Actions: The Strange Public – Private Divide

public-private2

This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2016 and historically.

As highlighted in the prior post, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is, despite the DOJ’s rhetoric, 77% of DOJ corporate enforcement actions since 2006 have not (at least yet) resulted in any DOJ charges against company employees.

Another very interesting and significant picture emerges when analyzing DOJ individual FCPA prosecutions based on whether the individual charged was employed by or otherwise associated with a publicly traded corporation or a private business organization.

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A Focus On DOJ Individual Actions

Criminal Law

This recent post focused on SEC individual FCPA actions and this post highlights certain facts and figures concerning the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2016 and historically.

As highlighted numerous times on FCPA Professor over the past several years, the DOJ frequently talks about the importance of individual FCPA prosecutions. During her tenure, Assistant Attorney General Leslie Caldwell (she recently left the DOJ) has stated that “certainly…there has been an increased emphasis on, let’s get some individuals” and that it is “very important for [the DOJ] to hold accountable individuals who engage in criminal misconduct in white-collar (cases), as we do in every other kind of crime.”

During his tenure DOJ FCPA Unit Chief Patrick Stokes (he recently left the DOJ) has said that the DOJ is “very focused” on prosecuting individuals as well as companies and that “going after one or the other is not sufficient for deterrence purposes.”

Against this backdrop, what do the facts actually show?

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A Focus On SEC Individual Actions

SEC

After a wild week or so in 2017 Foreign Corrupt Practices Act enforcement, back to some 2016 FCPA enforcement statistics.

This previous post highlighted various facts and figures from 2016 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 24 corporate SEC FCPA enforcement actions from 2016, 7 (29%) have involved, at present, related SEC charges or findings against company employees.

In 2016, the SEC charged or found that 8 individuals violated the FCPA.

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Bahn, Et Al – Not A Typical FCPA Enforcement Action

landmark72

Last week the DOJ announced Foreign Corrupt Practices Act, and related charges, against four individuals for their roles in a scheme to pay $2.5 million in bribes to facilitate the $800 million sale of a commercial building in Vietnam (the so-called Landmark 72 pictured at left) to a Middle Eastern sovereign wealth fund.

It certainly was not a typical FCPA enforcement action.

In fact it was downright strange in that the bribery scheme was unsuccessful and the third party intended to facilitate the bribery scheme simply pocketed the money for himself.

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