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Does The SEC Really Even Need A Specific FCPA Unit?

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In fiscal year 2010, the Securities and Exchange Commission created a specialized unit (one of only five in its enforcement division “dedicated to particular highly specialized and complex areas of securities law“) devoted to enforcing the FCPA.

The question arises however: does the SEC really even need a specific FCPA unit?

The below post highlights how, based on the SEC’s own enforcement statistics, FCPA enforcement actions comprise a minuscule percentage of its overall enforcement actions as well as other quantitative and qualitative factors relevant to the question posed.

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FCPA Flash Podcast – A Conversation With Thomas Gorman Regarding The SEC’s Recent Internal Controls Report Of Investigation

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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 Thomas Gorman (Dorsey & Whitney, former Senior Counsel in the SEC’s Division of Enforcement, and founder and editor of the informative SEC Actions blog). In the episode, Gorman discusses the SEC’s recent report of investigation relevant to the FCPA’s internal controls provisions, whether certain emerging FCPA issues should have been addressed through a report of investigation as opposed to an enforcement action, and common SEC internal controls enforcement theories including the “prevent and detect” standard not even found in the FCPA.

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Obvious Parallels To Certain FCPA Enforcement Actions In The SEC’s Recent Report Of Investigation


I’ve long believed that in certain instances, the SEC should use its Section 21(a) report of investigation powers to address emerging Foreign Corrupt Practices Act issues rather than bring an actual enforcement action.

Recently the SEC did just that in this report “regarding certain cyber-related frauds perpetrated against public companies and related internal accounting controls requirements.”

As highlighted below, in the report the SEC cites FCPA legislative history, prior SEC FCPA guidance, and otherwise takes positions in the report that seemingly undermine its internal controls enforcement theories in many traditional FCPA enforcement actions involving alleged foreign bribery.

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SEC Co-Director Of Enforcement Peikin On Success And Remedies


Recently, Steven Peikin (Co-Director of the SEC’s Division of Enforcement) gave this speech in which he talked about the meanings of success of the SEC’s enforcement program as well as the remedies and relief available to the SEC in enforcement actions.

While not Foreign Corrupt Practices Act specific, Peikin’s speech was FCPA relevant and portions of the speech (along with commentary) are excerpted below.

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Stephanie Avakian (Co-Director Of The SEC’s Enforcement Division) Ponders The Meaning Of Success


In this, the Foreign Corrupt Practices Act’s 40th year, it is prudent to take a step back and ponder the question of whether the FCPA has been successful in achieving its objectives. This of course begs the question: what is the definition of success? (See here a 25 minute video which explores this issue, see also posts here, here, and here).

Recently, Stephanie Avakian (Co-Director of the SEC’s Enforcement Division) delivered this speech. While the speech does not specifically mention the FCPA, Avakian nevertheless ponders the meaning of success when it comes to SEC enforcement (and after all, the SEC does have a specialized FCPA Unit – one of only five such specialized units).

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