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FCPA Flash Podcast – A Conversation With Bruce Yannett Regarding The Top Issues From 2017

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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 Bruce Yannett (Debevoise & Plimpton). Yannett has a wealth of experience in FCPA matters and among his many engagements was representing Siemens and Rolls Royce in connection with FCPA and related scrutiny.

During the podcast, Yannett identifies and elaborates on his list of the most notable issues from 2017: (i) the DOJ’s “FCPA Corporate Enforcement Policy” and implications for self-reporting;  (ii) international enforcement and the continuing rise of coordinated settlements; and (iii) the fallout from Kokesh v. SEC and how to balance SEC, DOJ and international enforcement and statutes of limitation.

 

Statute of Limitations Tolling in SEC Enforcement Actions Post-Kokesh – An Offer You Can Refuse

refuse

A guest post from Kevin Muhlendorf (Wiley Rein and a former SEC Enforcement Division attorney and DOJ Fraud Section prosecutor) and Michelle Bradshaw (Wiley Rein). See here for an FCPA Flash podcast episode with Muhlendorf regarding issues similar to those addressed in this post.

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The Supreme Court has now twice rebuked the Securities and Exchange Commission (“SEC” or “Commission”) in unanimous opinions on statutes of limitations.  See Gabelli v. Securities and Exchange Commission, 568 U.S. 442 (2013); see also Kokesh v. Securities and Exchange Commission, 137 S. Ct. 1635 (2017).

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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 Peikn’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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