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Friday Roundup

Roundup

Quotable, SEC Annual Report, it’s called the rule of law – deal with it, across the pond, more ISO 37001 puff pieces, monitor related, for your viewing pleasure, and for the reading stack. It’s all here in the Friday roundup.

Quotable

To those still hyperventilating about Foreign Corrupt Practices Act enforcement in the Trump administration (see here and here), perhaps this might calm you down. As reported here by Wall Street Journal Risk & Compliance: “[FCPA Unit Chief Daniel Kahn dismissed the suggestion that President Donald Trump‘s previous criticism of the FCPA has had any effect on the department’s enforcement of the law. Mr. Kahn said he “spanned both administrations,” referring to Mr. Trump’s predecessor, President Barack Obama, adding, “I am continuing to do what I do.”

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SEC Co-Director Of Enforcement Peikin Reflects On The Past, Present, And Future Of The SEC’s Enforcement Of The FCPA

Peikin

Earlier today, Steven Peikin (Co-Director of the SEC’s Enforcement Division) delivered this speech at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Blanco’s remarks.

But first a few comments.

In talking about the past, I wonder if Peikin is even aware of the following historical fact. As highlighted in the article “The Story of the Foreign Corrupt Practices Act,” the SEC never wanted any role in enforcing the FCPA’s anti-bribery provisions. However, congressional leaders at the time of the FCPA’s enactment had a high level of distrust with the Justice Department and insisted, against the SEC’s objections both when the FCPA was enacted in 1977 and when it was first amended in 1988, that it play a role in enforcing the FCPA’s anti-bribery provisions.

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Issues To Consider From The Alere Enforcement Action

Issues

This prior post went in-depth into the recent Foreign Corrupt Practices Act (and related) enforcement action against Alere and this post continues the analysis by highlighting additional issues to consider.

“Then Some” Enforcement Action

The majority of SEC FCPA enforcement actions are “just” FCPA enforcement actions. However, the Alere enforcement action was a “then some” enforcement action as the majority of the enforcement action (and indeed the bulk of the overall $13 million settlement) concerned findings of other securities laws violations regarding revenue recognition and related practices.

While not common, “then some” FCPA enforcement actions are not unheard of either.

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Issues To Consider From The Telia Enforcement Action

Issues

This previous post went in-depth into the Telia Foreign Corrupt Practices Act enforcement action which contemplates a net $483 million settlement (after accounting for various credits and deductions for contemplated Swedish and Dutch enforcement actions) – the 5th largest net FCPA settlement of all-time.

Set forth below are several additional issues to consider from the enforcement action.

No Books and Records Findings

Off the top of my head, I can recall only one prior instance (BNY Mellon) of an SEC FCPA enforcement action not involving books and records violations or findings. The Telia action is the second instance which is odd given that the SEC found that the “bribe payments were funneled through payments for sham lobbying and consulting services to a front company controlled by the official.”

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Relevant To The Motions To Dismiss Filed In SEC v. Cohen & Baros

relevant

Yesterday’s post went in-depth into the recent motions to dismiss filed in SEC v. Cohen & Baros (a rare instance in which the SEC is being put to its burden of proof in a Foreign Corrupt Practices Act enforcement action).

As highlighted in the post, the disputed legal issues largely center around statute of limitations and (as relevant to Baros a foreign national defendant) general personal jurisdiction issues as well as specific FCPA jurisdictional issues.

There are several previously decided cases cited in the parties’ briefs that are relevant to the issues in dispute and to get you up to speed on these issues, this post highlights those cases (all previously covered by FCPA Professor).

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