Kokesh Archives - FCPA Professor

Congress Buries Expansion Of SEC Disgorgement Authority In Annual Defense Budget

By Mike Koehler on December 21, 2020 in Disgorgement, Guest Posts, Kokesh

A guest post from Gibson Dunn attorneys Barry Goldsmith, Helgi Walker, M. Jonathan Seibald, and Brian Richman.

On December 11, 2020, Congress fulfilled its constitutional obligation “to provide for the common defense,”[1] passing for the 60th consecutive year the National Defense Authorization Act (“NDAA”), H.R. 6395. Buried on page 1,238 of this $740.5 billion military spending bill is an amendment to the Securities Exchange Act of 1934. That amendment gives the Securities and Exchange Commission, for the first time in its history, explicit statutory authority to seek disgorgement in federal district court. It also doubles the current statute of limitations for disgorgement claims in certain classes of cases. The amendment appears to be a direct response to recent Supreme Court decisions limiting the SEC’s authority.

Observations From The OECD’s Phase 4 U.S. Review Report

By Mike Koehler on November 19, 2020 in Affirmative Defense – Promotional Expenses, Deferred Prosecution Agreements, Disgorgement, Enforcement Agency Policy, Facilitating Payments, FCPA Statistics, Individual Enforcement Action, Industry Sweeps, Kokesh, Non-Prosecution Agreement, Obtain or Retain Business, OECD, Origins of FCPA Actions, Statute of Limitations, Voluntary Disclosure, Whistleblowers, Yates Memo

Recently, the OECD released its Phase 4 review of the United State’s implementation of the OECD Anti-Bribery Convention … in effect a review of the FCPA, its enforcement, and related issues.

The first question one needs to ask themselves is whether they care what “experts from Argentina and the United Kingdom” (as stated by the OECD “the report and its recommendations reflect the findings of experts from Argentina and the United Kingdom”) think about the U.S. Foreign Corrupt Practices Act, U.S. law enforcement (DOJ and SEC) policies and practices, and U.S. jurisprudence.

In any event, the Phase 4 Report “explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.” (See here for a 2010 post summarizing the OECD’s Phase 3 review).

Supreme Court To Hear Another SEC Disgorgement Case

By Mike Koehler on November 4, 2019 in Disgorgement, Kokesh

As highlighted in this previous post, in 2017 the Supreme Court unanimously bench slapped the SEC in Kokesh v. SEC and held that disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”

It was noted that while Kokesh was not an FCPA case, the decision was FCPA relevant given that disgorgement has become the dominant remedy sought by the SEC in corporate FCPA enforcement actions.

In covering the Kokesh decision, this prior post highlighted how a footnote in the Supreme Court’s decision seemed to be inviting another disgorgement case. Specifically, footnote 3 of the decision stated:

SEC Injunctions: A New Standard?

By Mike Koehler on October 16, 2019 in Guest Posts, Injunction, Kokesh

Several Foreign Corrupt Practices Act enforcement actions brought by the SEC have included an “obey-the-law” injunction as a condition of settlement. In the below guest post, Thomas Gorman (Dorsey & Whitney) discusses a recent Third Circuit opinion challenging the imposition of such an injunction.

The post originally appeared on Gorman’s informative SEC Actions blog and is reproduced below with permission.

Issues To Consider From The Walmart Enforcement Action

By Mike Koehler on June 24, 2019 in FCPA Investigative Costs, Gray Cloud, Investigative Fees, Kokesh, Statute of Limitations, Wal-Mart

This prior post went in-depth into the long-awaited Walmart Foreign Corrupt Practices Act enforcement action in which the company agreed to pay the DOJ/SEC approximately $283 million. This post highlights additional issues to consider from the enforcement action.

Timeline

Walmart was under FCPA scrutiny since approximately mid-2011. Thus, from start to finish its FCPA scrutiny lasted an unconscionable approximate 8 years. There is simply no excuse for this and the DOJ/SEC have long-recognized the issues associated with long-drawn out investigations.

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Congress Buries Expansion Of SEC Disgorgement Authority In Annual Defense Budget

Observations From The OECD’s Phase 4 U.S. Review Report

Supreme Court To Hear Another SEC Disgorgement Case

SEC Injunctions: A New Standard?

Issues To Consider From The Walmart Enforcement Action

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