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Kokesh – One Year Later

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As highlighted in this previous post, on June 5, 2017 in Kokesh v. SEC the Supreme Court unanimously rejected the SEC’s position and held that disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”

Although Kokesh was not a Foreign Corrupt Practices Act enforcement action, it most certainly was FCPA relevant because ever since the SEC first sought a disgorgement remedy in an FCPA enforcement action in 2004, disgorgement has become the dominant remedy sought by the SEC in corporate FCPA enforcement actions.

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Issues To Consider From The Legg Mason Enforcement Action

Issues

This previous post went in-depth into the DOJ’s recent Foreign Corrupt Practices Act enforcement action against Legg Mason. This post continues the analysis by highlighting additional issues to consider.

SEC Enforcement Action Is Forthcoming

Given Legg Mason’s recent disclosure (see here for the prior post), it was a bit of a surprise that this week’s enforcement action included only a DOJ component. FCPA enforcement actions against issuers that involve a DOJ and SEC component are almost always announced on the same day.

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Deal With It – Not Following The Law Has Consequences

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Imagine a company engaged in conduct that was very profitable to it. However, a unanimous Supreme Court declared the conduct illegal. Thereafter, a business executive of the relevant company testifies before Congress and complains that the Supreme Court decision is hurting its business.

I highly doubt anyone would have sympathy for the business executive or the company. After all the rule of law is the rule of law and a unanimous Supreme Court decision probably does sting.

The above analogy came to mind when reviewing a transcript of the recent “Oversight of the SEC’s Division of Enforcement” hearing by the House Committee on Financial Services, Subcommittee on Capital Markets, Securities, and Investment. (See here).

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Issues To Consider From The Panasonic Enforcement Action

Issues

This prior post went in-depth into the $280 million Foreign Corrupt Practices Act enforcement action against Japan-based Panasonic Corp.  and a U.S. subsidiary Panasonic Avionics Corp. (PAC).

This post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this prior post, Panasonic’s FCPA scrutiny appears to have begun in early 2013. Thus from start to finish, the company’s FCPA scrutiny lasted approximately 5.5 years.

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The Many Issues To Consider From The Dun & Bradstreet Enforcement Action

Issues

Some people simply read FCPA enforcement actions, accept the enforcement theories advanced, record the enforcement statistics, and go about their day.

Not here at FCPA Professor. Just because the FCPA is a fundamentally sound statute, does not mean that FCPA enforcement is necessarily fundamentally sound.

Prior posts here and here went in-depth into the SEC’s $9.2 million Foreign Corrupt Practices Act enforcement action against Dun & Bradstreet based on the conduct of two indirect Chinese subsidiaries from 6 – 12 years ago.

This post continues the analysis by highlighting the many troubling or notable issues to consider from the enforcement action.

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