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Yet Another Non-FCPA, FCPA Enforcement Action

By on August 18, 2022 in Books and Records, Internal Controls, Non-FCPA FCPA Enforcement Actions
Eagle

Thus far this year, the SEC has brought three Foreign Corrupt Practices Act enforcement actions involving alleged foreign bribery.

In the last approximate two months, the SEC has brought at least three FCPA enforcement actions not involving foreign bribery.

Confused? Don’t be. The FCPA has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, the name non-FCPA, FCPA enforcement actions has long been used on this site.

The latest example is this recent SEC enforcement action against Eagle Bancorp, Inc.

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A Further Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests

By on August 5, 2022 in Books and Records, Internal Controls, Non-FCPA FCPA Enforcement Actions, Robert Jordheim, Surgalign Holdings
Surgalign

This type of post has been published several times before (see here and here among other posts), and once again today, to highlight an important (yet often overlooked) aspect of the Foreign Corrupt Practices Act: the FCPA has always been a law much broader than its name suggests.

Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, let’s call these numerous enforcement actions non-FCPA, FCPA enforcement actions.

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SEC Commissioner Peirce Hits Another Home Run

By on July 12, 2022 in Compliance, Internal Controls, SEC
homerun

This site is a big fan of SEC Commissioner Hester Peirce.

Recently, the SEC announced a $100 million enforcement action against “Ernst & Young LLP (EY) for cheating by its audit professionals on exams required to obtain and maintain Certified Public Accountant (CPA) licenses, and for withholding evidence of this misconduct from the SEC’s Enforcement Division during the Division’s investigation of the matter.”

Commissioner Peirce agreed that the underlying cheating was worthy of an enforcement action, but nevertheless objected to the SEC’s settlement.

As discussed below, her reasoning – along the lines of “give the SEC an inch and they will take a mile” – are often present in Foreign Corrupt Practices Act enforcement actions as well.

Moreover, several of Commissioner Peirce’s objecting rationales are often present in FCPA enforcement action as well – such as her statement that “what [the SEC or an SEC Commissioner] might prefer and what one might do as a matter of prudence should not be confused with what one must do as a consequence of a legal obligation.”

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The Latest Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests

By on July 8, 2022 in Books and Records, Foreign Issuers, Internal Controls, Rudolf Franz, SEC, SEC Enforcement Action, voxeljet
reminder

The Foreign Corrupt Practices Act has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery and these provisions are among the most generic legal provisions one can possibly find.

These so-called non-FCPA FCPA enforcement actions often present a perplexing issue. That is, the same legal violation is generally enforced by the SEC in different ways.

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Issues To Consider From The Tenaris Enforcement Action

By on June 7, 2022 in Foreign Issuers, Gray Cloud, Internal Controls, Jurisdiction, Obtain or Retain Business, Risk Aversion, Tenaris
Issues

This post highlighted the recent $78.1 million Foreign Corrupt Practices Act enforcement action against Tenaris (the second time the company has resolved an FCPA enforcement action in the last approximate decade).

This post highlights additional issues to consider from the enforcement action.

Timeline

Tenaris “voluntarily notified” the SEC and DOJ of the matters involved in the enforcement action in October 2016.

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