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The Difficulty of Reconciling Existing Legal Authority And Even Enforcement Agency Guidance With Certain FCPA Books And Records And Internal Controls Enforcement Actions

Difficult

This recent FCPA Flash podcast episode focused on the SEC’s “unlawful” enforcement, in certain instances, of the FCPA’s books and records and internal controls provisions.

Off-the-rails SEC FCPA enforcement is a topic frequently discussed on these pages (see here among numerous other posts) and sometimes it is important to take a step back and review actual legal authority, as well as even prior enforcement agency guidance, relevant to the books and records and internal controls provisions.

Upon reviewing the below information, ask yourself whether it is possible to reconcile this legal authority and other sources of information with enforcement theories advanced in certain FCPA enforcement actions.

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The FCPA Turns 40

FCPAat40

Today our favorite statute, the Foreign Corrupt Practices Act, turns 40.

During this 40th anniversary year, posts will be published regarding various aspects of the FCPA at 40. For posts already published, see here, here and here.

If you have some unique and candid thoughts about the FCPA at 40, please consider submitting a guest post for publication consideration.

President Jimmy Carter’s December 20, 1977 signing statement stated in full as follows.

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Selfish Foreign Policy Reasons, Not Altruism, Is Why Congress Enacted The FCPA In 1977

FCPAat40

As the Foreign Corrupt Practices Act nears its 40th anniversary, it is perhaps neither here nor there 40 years later whether Congress in enacting the law was motivated by altruistic, do-good intentions or selfish, foreign policy goals.

But then again, it is important not to reinvent history or look at historical conduct through rose-colored glasses. Indeed, there are numerous accounts of history that ignore what really happened in favor of accounts that sound better.

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Looking Back At The Senate’s FCPA Hearing

Capital Hill

Seven years ago this week, the Senate held a hearing titled “Examining Enforcement of the Foreign Corrupt Practices Act.”

(See here for the full hearing transcript, here for the video).

It was the first congressional hearing on the FCPA during its new era of enforcement (to be followed by a June 2011 FCPA hearing in the House) and the first FCPA hearing in Congress since the FCPA was amended in 1998.

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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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