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Issues To Consider From The Kinross Gold Enforcement Action

Issues

This previous post went in-depth into the recent SEC Foreign Corrupt Practices Act enforcement action against Kinross Gold Corp.

Set forth below are additional issues to consider.

Just the Second

The 2016 enforcement action against Nordion was believed to be the first ever FCPA enforcement action against a Canadian company (see here and here for prior posts). The Kinross enforcement action is believed to be just the second.

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Friday Roundup

Roundup

A home run, quotable, monitors, up north, scrutiny alerts and updates, irksome, and for the reading stack. It’s all here in the Friday roundup.

Home Run

The latest issue of the always informative FCPA Update from Debevoise & Plimpton (released by the way on the opening day of the Major League Baseball season) hits a home run.

The lead article by Paul Berger (former¬†Associate Director of the SEC’s Enforcement Division) concerns the recent Elbit Imaging enforcement action (see here for the prior post) and states in pertinent part:

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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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FCPA Flash – A Conversation With Michael Levy Regarding The SEC’s “Unlawful” Enforcement Of The FCPA’s Accounting Provisions

Podcast Logo

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 Michael Levy (Paul Hastings). Levy recently authored a dandy article titled “The SEC’s Unlawful and Dangerous Expansion of the Exchange Act” in which he asserts that in certain recent enforcement actions the SEC has expanded the FCPA’s books and records and internal controls provisions in an “unlawful” manner and in a way that gives the SEC “capacious authority to regulate by enforcement almost any aspect of the operations of any issuer.” During the podcast, Levy elaborates on these issues and provides suggestions for how SEC enforcement can get back on track given that no issuer has ever put the SEC to its burden of proof in the FCPA’s 40-year history.

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A Focus On SEC Individual Actions

SEC

This previous post highlighted various facts and figures from 2017 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 7 corporate SEC FCPA enforcement actions in 2017, just 1 (14%) has involved, at present, related SEC charges or findings against company employees.

In 2017, the SEC charged or found that 3 individuals violated the FCPA: Michael Cohen and Vanja Baros (associated with Och-Ziff) and Jeannot Lorenz (associated with Halliburton)

This post focuses on SEC FCPA individual actions historically.

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