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How Rare Are Parallel DOJ And SEC FCPA Enforcement Actions Against Individuals?

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Yesterday’s post regarding the Foreign Corrupt Practices Act enforcement action against former SAP sales executive Vicente Garcia noted that it was rare instance of a parallel DOJ and SEC enforcement action against an individual.

A reader asks “how rare is rare” and this post provides the answer.

For starters, the SEC can only bring an FCPA enforcement action against issuers and associated persons, whereas the DOJ’s FCPA enforcement authority is not as limited.  (See here for a prior post discussing DOJ and SEC FCPA jurisdiction).

Moreover, as highlighted in this post, approximately 85% of corporate SEC FCPA enforcement actions since 2008 have not resulted in any related enforcement activity against individuals.

Given the above dynamics, it is thus a rather small subset of actions in which a parallel DOJ and SEC enforcement action against an individual might occur.

Even though the DOJ and SEC are rarely put to its burden of proof – even in individual enforcement actions – it is nevertheless relevant in analyzing this issue to note that the SEC as a civil law enforcement agency has a burden of proof of preponderance of the evidence, whereas the DOJ as a criminal law enforcement agency has a much higher burden of proof of beyond a reasonable doubt.

Against this backdrop, the parallel DOJ and SEC enforcement action against Garcia is believed to be only the second such instance in the last 3.5 years and one of only a handful over last decade.

Other examples of parallel DOJ and SEC FCPA enforcement actions against individual are as follows.

Garth Peterson (associated with Morgan Stanley) 2012 (see here and here).

Various Siemens executives – 2011 (see here and here).

Ousama Naaman (associated with Innospec) 2010 (see here and here).

Bobby Elkin (associated with Alliance One International) 2010 (see here and here).

Albert Stanley (associated with KBR / Halliburton)  2008 (see here and here).

Si Chan Wooh (associated with Schnitzer Steel) 2007 (see here and here). (Note, four years after Wooh pleaded guilty, the court granted the DOJ’s motion to dismiss the case in the “interests of justice).

Jim Brown and Jason Steph (associated with Willbros) 2006, 2008  (see here and here) (see here and here).

Steven Ott, Roger Young, and Yaw Amoako (associated with ITXC Corp.)  2006, 2005 (see here and here) (see here and here).

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