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Further To The SEC’s Inconsistent Approach To Enforcing The FCPA’s Books And Records And Internal Controls Provisions

inconistent

As highlighted in previous posts on this subject (here and here), a basic rule of law principle is consistency.

In other words, the same legal violation ought to be sanctioned in the same way. When the same legal violation is sanctioned in materially different ways, trust and confidence in law enforcement is diminished.

However, there sure does seem to be a lack of consistency between how the SEC resolves Foreign Corrupt Practices Act books and records and internal controls violations.

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A Focus On SEC Individual Actions

SEC

After a wild week or so in 2017 Foreign Corrupt Practices Act enforcement, back to some 2016 FCPA enforcement statistics.

This previous post highlighted various facts and figures from 2016 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 24 corporate SEC FCPA enforcement actions from 2016, 7 (29%) have involved, at present, related SEC charges or findings against company employees.

In 2016, the SEC charged or found that 8 individuals violated the FCPA.

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SEC Enforcement Of The FCPA – 2016 Year In Review

SEC

Foreign Corrupt Practices Act enforcement, it’s not just about the DOJ.

Granted, as a civil enforcement agency the SEC’s sticks are less sharp than the DOJ’s, but the SEC also claims a significant piece of the FCPA enforcement pie (query whether it should – but that is a subject for another day – for instance as discussed in “The Story of the Foreign Corrupt Practices Act” the SEC wanted no part in enforcing the FCPA’s anti-bribery provisions).

This previous post was a 2016 year in review of DOJ FCPA enforcement.

Today’s post is a 2016 year in review of SEC FCPA Enforcement.  (See here for a similar post for 2015; here for a similar post for 2014; here for a similar post for 2013; here for a similar post for 2012; here for a similar post for 2011; and here for a similar post for 2010).

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Trump’s Pick For SEC Chairman Has An Informed And Sophisticated Understanding Of FCPA Issues

Jay Clayton

As has been widely reported, President-elect Donald Trump has nominated Jay Clayton (a lawyer at Sullivan & Crowell) to lead the SEC.

This post largely reboots this December 2011 FCPA Professor which highlighted a report titled “The FCPA and its Impact on International Business Transactions – Should Anything Be Done to Minimize the Consequences of the U.S.’s Unique Position on Combating Offshore Corruption?” by the International Business Transactions Committee of the Association of the Bar of the City of New York. The chairman of the Committee that drafted and reviewed the report was Jay Clayton.

The cheerleaders of more FCPA enforcement (regardless of enforcement theory, regardless of resolution vehicle used, regardless of settlement amount, and regardless of long-term collateral consequences) will likely get agitated by Clayton’s nomination.

However, those with actual FCPA practice experience, an informed understanding of global business conditions, and a desire for smart FCPA enforcement will be interested to learn of the report previously released by Clayton’s committee.

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Friday Roundup

Roundup

Guilty plea, scrutiny alerts and updates, SEC Director of Enforcement to leave, sound analysis of the JPMorgan enforcement action, and for the reading stack.

It’s all here in the Friday roundup.

Mebiame Guilty Plea

As highlighted in this previous post, in August 2016 the DOJ unsealed a criminal complaint charging Samuel Mebiame, a Gabonese national connected to Och-Ziff, with conspiracy to violate the FCPA’s anti-bribery provisions. In pertinent part, the complaint alleged that Mebiame, on behalf of Och-Ziff and related entities, routinely paid bribes to foreign government officials in at least each Niger, Guinea and Chad.”

Today, the DOJ announced that Mebiame pleaded guilty.

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