SEC Co-Director Of Enforcement Peikin Reflects On The Past, Present, And Future Of The SEC’s Enforcement Of The FCPA
Earlier today, Steven Peikin (Co-Director of the SEC’s Enforcement Division) delivered this speech at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Peikn’s remarks.
But first a few comments.
In talking about the past, I wonder if Peikin is even aware of the following historical fact. As highlighted in the article “The Story of the Foreign Corrupt Practices Act,” the SEC never wanted any role in enforcing the FCPA’s anti-bribery provisions. However, congressional leaders at the time of the FCPA’s enactment had a high level of distrust with the Justice Department and insisted, against the SEC’s objections both when the FCPA was enacted in 1977 and when it was first amended in 1988, that it play a role in enforcing the FCPA’s anti-bribery provisions.
Acting Assistant Attorney General Blanco Delivers FCPA Speech
Today, Acting Assistant Attorney General Kenneth Blanco delivered these remarks at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Blanco’s remarks.
But first a few comments.
In his speech, Blanco states that it “is astonishing to think about what the FCPA and OECD Anti-Bribery Convention have achieved in a relatively short period of time.” That of course depends on what the word “achieve” means. On one level, has the FCPA really “achieved” (after 40 years – not exactly a “relatively short time period”) its objective of reducing bribery given that there are more enforcement actions, not fewer, as the FCPA has matured?
Deputy AG Rosenstein – “We Should Never Use The Threat Of Federal Enforcement Unfairly To Extract Settlements”
Yet another speech by Deputy Attorney General Rod Rosenstein to pass along (see here and here for other recent speeches).
Yesterday, Rosenstein deliver this morning keynote address at the U.S. Chamber Institute for Legal Reform. Among other things, Rosenstein stated: “Corporate enforcement and settlement demands must always have a sound basis in the evidence and the law. We should never use the threat of federal enforcement unfairly to extract settlements.”
Was this merely an unobjectionable forward-looking statement or perhaps a subtle criticism of the Obama administration during which certain people felt that the DOJ often did just that? For instance, see here for a prior post highlighting former Deputy AG David Ogden’s speech criticizing the DOJ’s leverage-based enforcement approach as well as this FCPA Flash podcast episode during which Ogden further elaborates on the issues.
Deputy Attorney General Rod Rosenstein On …
Recently DOJ Deputy Attorney General Rod Rosenstein delivered this speech in which he stated: “The Department’s rhetoric gets a lot of attention – the policy memos and speeches. But performance is what matters most.”
I completely agree and that is why, over the years, FCPA Professor has profiled over 165 FCPA enforcement agency speeches and otherwise analyzed whether reality is consistent with rhetoric.
Thus, when Rosenstein states in his speech (as DOJ officials have for years) that its “resolve [is] to hold individuals accountable for corporate wrongdoing,” I say performance is what matters most and the last 20 DOJ corporate FCPA enforcement actions have lacked related criminal charges against company employees (and going back to 2008 approximately 80% of DOJ corporate FCPA enforcement actions have lacked related criminal charges against company employees) (see here).
On The Intersection Of Antitrust Enforcement And Corruption
Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.
Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.