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FCPA Flash – A Conversation With Thomas Gorman

FCPA Flash

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 the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Thomas Gorman, a lawyer with Dorsey & Whitney. Prior to private practice, Gorman spent several years at the SEC including as Senior Counsel in the SEC’s Division of Enforcement. Gorman focuses his practice on SEC and related public company issues including those arising under the Foreign Corrupt Practices Act. In addition, Gorman founded and runs the informative SEC Actions blog.

In the episode, Gorman talks about the FCPA’s books and records and internal controls provisions using the recent Las Vegas Sands enforcement action as a guide (see prior posts here and here). In addition, Gorman responds to the following questions: whether the books and records and internal controls provisions are essentially standardless and whether the SEC, with the perfect benefit of hindsight, advances expansive theories of liability; and whether with ever-expanding theories of enforcement, the time has come for an issuer to put the SEC to its burden of proof in an FCPA enforcement action.

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Two For Tuesday In FCPA Enforcement Land – First Up Nortek

nortek

Just when you think you’ve seen all possible combinations of Foreign Corrupt Practices Act enforcement, along comes yesterday’s “two for Tuesday” in which the SEC announced in the same press release two non-prosecution agreements against two separate companies and the DOJ simultaneously released two so-called “declination” letters against the same two companies.

This post highlights the enforcement action against Nortek Inc. and a second post today highlights the enforcement action against Akamai Technologies. From there future posts will highlight issues to consider from the enforcement actions (and there are many including the question of just what charges – based on the SEC’s statement of facts – did the DOJ actually decline?”).

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FCPA Flash – A Conversation With Colby Smith

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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 the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Colby Smith (Debevoise & Plimpton). Smith is the Co-Chair of the firm’s Securities Litigation Practice and his practice focuses primarily on securities class action and derivative litigation, SEC and other regulatory enforcement matters, and internal corporate investigations, including those arising under the FCPA.

In the episode, Smith discusses the prominence of disgorgement in SEC FCPA enforcement actions, the questionable use of the disgorgement remedy in FCPA enforcement actions that did not charge or find anti-bribery violations, and notable and disputed issues that arise in SEC FCPA enforcement actions.

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SEC Announces Blockbuster FCPA Enforcement Actions Against ALL Issuers

wow

[Today is April 1st, commonly referred to as April Fools Day. Please keep this in mind when reading this post. In other words, this post should not be taken literally. Even though this post is presented as satire, readers are encouraged to ponder the issues raised.]

Earlier today the SEC announced Foreign Corrupt Practices Act enforcement actions against all issuers subject to the FCPA.

Total SEC recovery in the enforcement actions – all resolved via administrative cease and desist orders and thus not subject to any judicial scrutiny was – approximately $925 billion dollars.

In announcing the enforcement actions, an SEC spokesperson stated:

“Using our data analytics tools, the SEC determined that it was more likely than not – given the SEC’s current FCPA enforcement theories – that all issuers subject to FCPA were in violation of the FCPA’s anti-bribery provisions, or at the very least the FCPA’s books and records and internal controls provisions.”

Pressed for more specifics on the enforcement actions, the SEC spokesperson stated:

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Issues To Consider From The Nordion (Canada Inc.) Enforcement Action

Issues

This previous post went in-depth on the recent Foreign Corrupt Practices Act enforcement action against Nordion (Canada, Inc.).

This post continues the analysis by highlighting various issues to consider.

A future post will explore how the seemingly minor enforcement action (the settlement amount was a mere $375,000) should leave anyone who cares about FCPA enforcement speechless. An additional future post will pose the question of why did Nordion voluntarily disclose while also highlighting that its FCPA scrutiny cost the company in excess of $20 million in pre-enforcement action professional fees and expenses (a shocking 50:1 ratio compared to the settlement amount).

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