Gray Cloud Archives - FCPA Professor

Like Prior Years, The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2020

By Mike Koehler on January 6, 2021 in Gray Cloud, Year in Review 2020

This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2020.

Continuing with the 2020 FCPA statistical feast, this post follows the chronology of scrutiny to enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.

That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4 years was the approximate median length of time companies that resolved FCPA enforcement actions in 2020 were under scrutiny.

Before highlighting the statistics, some general background.

Additional Issues To Consider From The Goldman Enforcement Action

By Mike Koehler on October 29, 2020 in Financial Services Industry, Goldman Sachs, Gray Cloud, Monitor

This prior post highlighted the net $1.66 billion Foreign Corrupt Practices Act enforcement action against Goldman Sachs and a related entity.

This prior post posed the question, based on the government’s allegations, what should happen when compliance is decent (and often good), but not great? The prior post also highlighted how the Goldman enforcement action was much different than certain other top ten FCPA enforcement actions.

This prior post discussed various developments related to the Goldman FCPA enforcement action.

This post continues the analysis by highlighting additional issues to consider from the enforcement action.

Office Of Management And Budget Releases “Best Practices” For “Fairness In Administrative Enforcement And Adjudication”

By Mike Koehler on September 28, 2020 in Compliance Defense, Gray Cloud, SEC

In response to COVID-19, in May 2020 President Trump signed Executive Order 13924 titled “Regulatory Relief to Support Economic Recovery.”

Section 1 stated in pertinent part: “it is the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, Executive Departments and Agencies (such as the Securities and Exchange Commission) were directed to commit to “fairness in administrative enforcement and adjudication.”

The Executive Order authorized the Director of the Office of Management and Budget (OMB) to issue guidance implementing the order which the OMB recently did in this memo. The OMB’s list of “best practices” include the following that are relevant to the SEC’s enforcement of the FCPA.

Stephanie Avakian (Director – SEC Division of Enforcement) Speaks On A Variety Of Topics – Rebuttal Points Included

By Mike Koehler on September 22, 2020 in Enforcement Agency Policy, Enforcement Agency Speeches, Gray Cloud, SEC

Recently Stephanie Avakian (Director of the SEC’s Division of Enforcement) gave this speech in which she touched upon a variety of enforcement topics.

This post excerpts certain portions of Avakian’s speech regarding the quality, nature, and effectiveness of SEC enforcement efforts, individual accountability, and the time it takes to complete an investigation and enforcement action.

Starting with the numbers, Avakian stated:

Issues To Consider From The Herbalife Enforcement Action

By Mike Koehler on September 1, 2020 in Disgorgement, Gray Cloud, Herbalife, Internal Controls, Root Causes

This prior post went in-depth into the recent $123 million Foreign Corrupt Practices Act enforcement action against Herbalife and this post highlights additional issues to consider.

Timeline

As highlighted in this post, Herbalife disclosed its FCPA scrutiny in early 2017. Thus, from start to finish, its scrutiny lasted more than 3.5 years. I’ve said it many times, and will continue saying it until the cows come home, if the DOJ/SEC wants their FCPA enforcement programs to be viewed as credible and effective they must resolve instances of FCPA scrutiny much quicker.

This is particularly true in the Herbalife matter given that the conduct focused on a single country as well as the following language from the enforcement agencies.

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Like Prior Years, The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2020

Additional Issues To Consider From The Goldman Enforcement Action

Office Of Management And Budget Releases “Best Practices” For “Fairness In Administrative Enforcement And Adjudication”

Stephanie Avakian (Director – SEC Division of Enforcement) Speaks On A Variety Of Topics – Rebuttal Points Included

Issues To Consider From The Herbalife Enforcement Action

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