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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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FCPA At 40 Events

big40

This previous post highlighted a keynote address by Jay Jorgensen (Walmart Executive V.P. and Global Chief Ethics and Compliance Officer) delivered at The FCPA at 40 symposium hosted by Texas A&M University School of Law on October 12th. I will be publishing a paper “Has the FCPA Been Successful In Achieving Its Objectives?” in the Texas A&M Law Review and the answer to the question depends on the meaning of success, and even then, is complicated given that certain forms of success are near impossible to measure.

The remainder of this post highlights another recent FCPA at 40 event including comments from Jack Blum (a key staff member for Senator Frank Church’s Subcommittee during the investigation that helped to instigate the FCPA’s enactment) and Stanley Sporkin (SEC Director of Enforcement during the mid-1970’s when Congress was investigating the so-called foreign corporate payments problem). In addition, the post highlights additional FCPA at 40 events over the next 10 days.

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On The Intersection Of Antitrust Enforcement And Corruption

intersection

Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.

Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.

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The Many Contradictions In The DOJ’s FCPA Statutory Interpretation Positions

Contradiction

Given the paucity of contested DOJ Foreign Corrupt Practices Act enforcement actions, it is rare for the DOJ to publicly articulate its FCPA statutory interpretation positions.

But when this does occur, the DOJ frequently takes contradictory and inconsistent positions.

Counsel representing defendants in contested FCPA enforcement actions would be wise to analyze this dynamic and this dynamic represents yet another reason why more business organizations and individuals under FCPA scrutiny should put the DOJ to its burden of proof.

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Perhaps The Disclosure Approach Wasn’t Such A Bad Idea After All

Sunrays

This recent Wall Street Journal article titled “If You Solicit Bribes, This Fellow Wants to Punch You In the Face” caught my eye. It details a Thai man, who after years of paying bribes, became fed up with “what passes for business as usual in Bangkok” and launched a “nightly television show where he runs through the various demands for bribes and kickbacks that he says many people here endure.”

Whether this approach is reducing corruption is a debatable point, but it serves as a useful reminder that the FCPA’s current prohibition approach was not the only approach Congress considered in the mid-1970’s when considering the so-called foreign corporate payments problem.

The other approach, consistent with Louis Brandeis famous quote “sunlight is said to be the best of disinfectants,” was a disclosure approach.

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