Friday Roundup
Predictable, scrutiny alert, in the words of Attorney General Lynch, bankrupt, DOJ guidance, and for the reading stack. It’s all here in the Friday roundup.
Predictable
It’s as predictable as the sun rising in the east.
A former FCPA enforcement official criticizes certain aspects of FCPA enforcement. As noted in this Law360 article, former DOJ Assistant Attorney General of the Criminal Division Lanny Breuer (who took a great interest in FCPA enforcement while in that position – see here for the article “Lanny Breuer and FCPA Enforcement”) recently observed as follows regarding the DOJ’s FCPA Pilot Program.
SEC Chair White On The FCPA
Earlier this week SEC Chair Mary Jo White delivered this speech.
Her speech focused on “a few priority areas that illustrate the dimensions of the SEC’s international role” and a substantial portion of the speech focused on the Foreign Corrupt Practices Act including how “vigorous enforcement of the FCPA is a high priority for both the SEC and DOJ.”
On individual actions, Chair White stated: “we prioritize charging individuals involved in bribery schemes where we have the necessary evidence and jurisdiction over the offender [and that] holding individuals accountable for their misconduct remains one of the most powerful deterrents in any enforcement area.”
Keep in mind however the following facts. In 2016 thus far, 70% of corporate SEC FCPA enforcement actions have not involved any related individual charges and since 2008 approximately 80% of corporate SEC FCPA enforcement actions have not involved any related individual charges.
The remainder of this post excerpts the FCPA portion of Chair White’s speech.
Analyzing The DOJ’s Recent Comments About Its FCPA Pilot Program
This recent post noted that DOJ and SEC enforcement officials have historically hit the speaking circuit in September.
Sure enough.
First up is DOJ Principal Deputy Assistant Attorney General David Bitkower (pictured) who delivered this speech last week at an ABA conference.
As excerpted below, a portion of Bitkower’s speech focused on the Foreign Corrupt Practices Act including the DOJ’s so-called FCPA Pilot Program announced in April 2016 (see here for the prior post and here, here, here, here, here and here for prior posts regarding the program).
In the speech, Bitkower calls the FCPA Pilot Program “sophisticated” and “transparent.”
As demonstrated below, the FCPA Pilot Program is anything but.
Friday Roundup
Assistant Attorney General Leslie Caldwell on the DOJ’s FCPA Pilot Program, scrutiny alerts and updates, quotable and for the reading stack. It’s all here in the Friday roundup.
Caldwell on the FCPA Pilot Program
This article contains a recent Q&A with Assistant Attorney General Leslie Caldwell about the DOJ’s FCPA Pilot Program.
After reading the below excerpts, you might also want to read the article “Grading the DOJ’s FCPA Pilot Program.”
Yates Defends The “Yates” Memo
As highlighted in this prior post, in September 2015 the DOJ released this memo authored by DOJ Deputy Attorney General Sally Yates titled “Individual Accountability for Corporate Wrongdoing” (the so-called “Yates” Memo).
The “Yates” Memo was met with mounds of criticism including from former high-ranking DOJ officials. Against this backdrop Yates, not surprisingly defended her namesake memo.
The latest defense occurred last week as Yates delivered this speech at the New York City Bar Association White Collar Crime Conference. Yates focused her remarks on “why we did it and how it’s working so far in practice.”
Her remarks focused on individually accountability, cooperation, and how the Yates Memo is working in practice. As to this later issue, Yates, not surprisingly, stated that the memo is “causing positive change within companies.” This claim of course is difficult, if not impossible, to verify empirically.
Yates also touched upon the DOJ’s recent FCPA “Pilot Program.” (See here for the article “Grading the DOJ’s FCPA Pilot Program”).