Issues To Consider From The SAP Enforcement Action
This previous post highlighted the recent FCPA enforcement action against SAP based on conduct in South Africa, Indonesia, Malawi, Kenya, Tanzania, Ghana, and Azerbaijan.
This post highlights additional issues to consider.
Timeline
As highlighted in this previous post, in mid-2017 SAP disclosed that it was under FCPA scrutiny concerning its business practices in South Africa.
Principal Associate Deputy AG Marshall Miller On …
Recently, Principal Associate Deputy Attorney General Marshall Miller delivered this speech.
He focused his remarks on “how today’s world demands that the Department of Justice expand, innovate, and modernize our corporate enforcement efforts to meet the moment, and how the private sector can also adapt to combat misconduct and promote compliance.”
Miller began:
Let’s Analyze This For A Minute
As highlighted in this post, earlier this week Acting Assistant Attorney General Nicole Argentieri gave an FCPA speech in which she stated, among other things, as follows.
“Our corporate enforcement policies encourage companies to voluntarily self-disclose misconduct and cooperate for good reason: It allows us to build stronger cases against culpable individuals more quickly. As searching as our investigations may be, there are some cases that we may never learn about absent a company’s voluntary self-disclosure. And we require those disclosures to be timely so we can preserve evidence more easily, carry out our own investigation into wrongful conduct, interview witnesses before memories fade, and prosecute individuals or other entities before the expiration of the statute of limitations.”
DOJ officials have been saying the same thing for years.
But, let’s analyze this for a minute.
Acting Principal Deputy Assistant Attorney General Nicole Argentieri On ….
Yesterday Acting Principal Deputy Assistant Attorney General Nicole Argentieri delivered this speech at the annual FCPA dog and pony show.
Argentieri addressed four topics: (1) the DOJ “achievements this year in the fight against corruption and white collar crime; (2) how the DOJ is “actioning the recent corporate enforcement policies announced by the department — policies that built upon longstanding Criminal Division policies and practices in a space where the Criminal Division has long been a leader; (3) “the Criminal Division’s ongoing use of data analytics, and how we are expanding our use of data to enhance our FCPA enforcement efforts”; and (4) “an exciting new resource dedicated to deepening our international partnerships in key parts of the world that will enhance our ability to identify and prosecute foreign bribery offenses and allow us to generate new and impactful cases.”
When Rhetoric Does Not Match Reality
Do SEC enforcement officials realize that words they speak often are contradicted by the reality of SEC’s enforcement program?
For instance, SEC Chair Gary Gensler (pictured) recently gave this speech in which he talked about the SEC’s enforcement enforcement program using five themes: Economic Realities, Accountability, High-Impact Cases, Process, and Positions of Trust.
As to accountability, Gensler stated: [n]othing motivates individuals and firms quite like accountability. We use all of the tools in our toolkit to hold bad actors accountable—including bars, penalties, injunctions, undertakings, and litigating where appropriate.”