A Focus On SEC Individual Actions

Like the DOJ, the SEC frequently speaks in lofty rhetoric concerning its focus on holding individuals accountable under the FCPA.

In November 2014, the SEC’s Director of Enforcement stated:

“I always have said that actions against individuals have the largest deterrent impact. Individual accountability is a powerful deterrent because people pay attention and alter their conduct when they personally face potential punishment. And so in the FCPA arena as well as all other areas of our enforcement efforts, we are very focused on attempting to bring cases against individuals.  […] [I]ndividual accountability is critical to FCPA enforcement — and imposing personal consequences on bad actors, including through bars and monetary sanctions, will continue to be a high priority for us.”

Most recently in November 2015, the SEC’s Director of Enforcement stated:

“Holding individuals accountable for their wrongdoing is critical to effective deterrence and, therefore, the Division considers individual liability in every case. […] The Commission is committed to holding individuals accountable and I expect you will continue to see more FCPA cases against individuals.”

Since 2000, the SEC has charged 63 individuals with FCPA civil offenses.  The breakdown is as follows.

• 2000 – 0 individuals
• 2001 – 3 individuals
• 2002 – 3 individuals
• 2003 – 4 individuals
• 2004 – 0 individuals
• 2005 – 1 individual
• 2006 – 8 individuals
• 2007 – 7 individuals
• 2008 – 5 individuals
• 2009 – 5 individuals
• 2010 – 7 individuals
• 2011 – 12 individuals
• 2012 – 4 individuals
• 2013 – 0 individuals
• 2014 – 2 individuals
• 2015 –  2 individuals

As highlighted by the above statistics, most of the individuals charged – 37 (or  59%) were charged since 2008.  Thus, on one level the SEC is correct when it states that individual prosecutions are a focus of its FCPA enforcement program at least as measured against the historical average given that between 1977 and 1999 the SEC charged 22 individuals with FCPA civil offenses.

Yet on another level, a more meaningful level given that there was much less overall enforcement of the FCPA between 1977 and 1999, the SEC’s statements represent hollow rhetoric as demonstrated by the below figures.

Of the 37 individuals charged with civil FCPA offenses by the SEC since 2008:

• 7 individuals were in the Siemens case;
• 4 individuals were in the Willbros Group case;
• 4 individuals were in the Alliance One case;
• 3 individuals were in the Maygar Telekom case; and
• 3 individuals were in the Noble Corp. case.

In other words, 57% of the individuals charged by the SEC with FCPA civil offenses since 2008 have been in just five cases.

Considering that there has been 81 corporate SEC FCPA enforcement actions since 2008, this is a rather remarkable statistic.  Of the 81 corporate SEC FCPA enforcement actions, 67 (or 83%) have not (at least yet) resulted in any SEC charges against company employees.

This is an interesting figure given that between 1977 and 2004 61% of SEC corporate FCPA enforcement actions did indeed result in related charges against company employees.  In other words, for most of the FCPA’s history the majority of corporate SEC FCPA enforcement resulted in related individual accountability, but in the SEC’s modern FCPA enforcement program, the vast majority of corporate SEC FCPA enforcement actions have not resulted in related individual accountability despite the SEC’s rhetoric.

It is also interesting to analyze the 14 instances since 2008 where an SEC corporate FCPA enforcement action resulted in related charges against company employees.   With the exception of Siemens, KBR/Halliburton and Magyar Telekom, the corporate SEC FCPA enforcement actions resulting in related charges against company employees occurred in what can only be described as relatively minor (at least from a settlement amount perspective) corporate enforcement actions.  These actions are:  Faro Technologies, Willbros Group, Nature’s Sunshine Products, United Industrial Corp., Pride Int’l., Noble Corp., Alliance One, Innospec, Watts Water, PBSJ and FLIR Systems.

Set forth below is a complete list of SEC corporate FCPA enforcement actions since 2008 and whether the corporate enforcement action resulted in any related individual charges. Beginning in October 2014, I publicly invited (see here) the SEC to refute these numbers to support its individual accountability rhetoric. The SEC has not responded and the invitation still stands.