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FCPA Flash Podcast – A Conversation With Bradley Bondi Regarding His Recent FCPA Relevant House Testimony

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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 Bradley Bondi (Cahill Gordon & Reindel LLP). As highlighted in this recent post, Bondi testified at a House hearing titled “Ensuring Effectiveness, Fairness, and Transparency in Securities Law Enforcement” that touched upon several FCPA relevant issues. In the podcast, Bondi elaborates on certain of these issues including: disgorgement and statute of limitation issues. In addition, based on his comment during the hearing that “few would consider a local police force successful in deterring crime if it announced record numbers of arrests year after year,” Bondi opines whether the FCPA is being successful in accomplishing its objectives.

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The SEC’s Shrinking FCPA Jurisdiction


As stated in the DOJ/SEC issued FCPA Guidance: “SEC is responsible for civil enforcement of the FCPA over issuers and their officers, directors, employees, agents, or stockholders acting on the issuer’s behalf.”

The Guidance then states: “[A] company is an ‘issuer’ under the FCPA if it has a class of securities registered under Section 12 of the Exchange Act or is required to file periodic and other reports with SEC under Section 15(d) of the Exchange Act. In practice, this means that any company with a class of securities listed on a national securities exchange in the United States, or any company with a class of securities quoted in the over-the-counter market in the United States and required to file periodic reports with SEC, is an issuer.”

As highlighted in this post, currently there are substantially fewer issuers subject to SEC FCPA jurisdiction compared to prior decades.

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SEC Potpourri


A suggestion for the SEC and excerpts from a recent speech by Steven Peikin (Co-Director, Division of Enforcement) on effective communication with the SEC.

Suggestion for the SEC

As highlighted here, the SEC recently launched SEC Action Lookup for Individuals (SALI) “that enables investors to research whether the person trying to sell them investments has a judgment or order entered against them in an enforcement action. The new tool is intended to assist the public in making informed investment decisions and avoiding financial fraud.”

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A Dandy, FCPA Relevant Speech By SEC Commissioner Peirce


Recently, SEC Commissioner Hester Peirce delivered this speech. Peirce never mentioned the Foreign Corrupt Practices Act, but so much of the speech is FCPA relevant.

Indeed, Peirce touches upon topics discussed for years on FCPA Professor such as: the seeming emphasis by government of quantity of enforcement over quality of enforcement; the timing of SEC enforcement actions at the end of a fiscal year as a form of “earnings management;” how the SEC should use other avenues short of enforcement actions to address new and emerging issues (I’ve long believed that the SEC should have used a Section 21(a) Report of Investigation, rather than enforcement actions, to address internship and hiring practice issues); the importance of due process in enforcement; how enforcement agencies should not expand the law through enforcement just because they can; and how issuers and others subject to SEC enforcement settle for simple reasons of risk aversion.

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Issues To Consider From The Kinross Gold Enforcement Action


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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