Office Of Management And Budget Releases “Best Practices” For “Fairness In Administrative Enforcement And Adjudication”
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
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
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.
Issues To Consider From The World Acceptance Corp. Enforcement Action
This prior post went in-depth into the SEC’s recent $21.7 million Foreign Corrupt Practices Act enforcement action against World Acceptance Corp. (WAC) and this post highlights additional issues to consider.
Timeline
As highlighted in this post, WAC disclosed its FCPA scrutiny in mid-2017. Thus, from start to finish, its scrutiny lasted more than three years. I’ve said it many times, and will continue saying it until the cows come home, if the SEC wants its FCPA enforcement program to be viewed as credible and effective it must resolve instances of FCPA scrutiny much quicker.
Issues To Consider From The Alexion Enforcement Action
This recent post went in-depth into the SEC’s recent $21.5 million Foreign Corrupt Practices Act enforcement action against Alexion Pharmaceuticals and this post highlights additional issues to consider.
Timeline
Alexion became the subject of FCPA scrutiny in May 2015. Thus, from start to finish, its scrutiny lasted more than 4 years. I’ve said it many times, and will continue saying it until the cows come home, if the SEC wants its FCPA enforcement program to be viewed as credible and effective it must resolve instances of FCPA scrutiny much quicker.