Issues To Consider From The Alere Enforcement Action
This prior post went in-depth into the recent Foreign Corrupt Practices Act (and related) enforcement action against Alere and this post continues the analysis by highlighting additional issues to consider.
“Then Some” Enforcement Action
The majority of SEC FCPA enforcement actions are “just” FCPA enforcement actions. However, the Alere enforcement action was a “then some” enforcement action as the majority of the enforcement action (and indeed the bulk of the overall $13 million settlement) concerned findings of other securities laws violations regarding revenue recognition and related practices.
While not common, “then some” FCPA enforcement actions are not unheard of either.
Issues To Consider From The Telia Enforcement Action
This previous post went in-depth into the Telia Foreign Corrupt Practices Act enforcement action which contemplates a net $483 million settlement (after accounting for various credits and deductions for contemplated Swedish and Dutch enforcement actions) – the 5th largest net FCPA settlement of all-time.
Set forth below are several additional issues to consider from the enforcement action.
No Books and Records Findings
Off the top of my head, I can recall only one prior instance (BNY Mellon) of an SEC FCPA enforcement action not involving books and records violations or findings. The Telia action is the second instance which is odd given that the SEC found that the “bribe payments were funneled through payments for sham lobbying and consulting services to a front company controlled by the official.”
Relevant To The Motions To Dismiss Filed In SEC v. Cohen & Baros
Yesterday’s post went in-depth into the recent motions to dismiss filed in SEC v. Cohen & Baros (a rare instance in which the SEC is being put to its burden of proof in a Foreign Corrupt Practices Act enforcement action).
As highlighted in the post, the disputed legal issues largely center around statute of limitations and (as relevant to Baros a foreign national defendant) general personal jurisdiction issues as well as specific FCPA jurisdictional issues.
There are several previously decided cases cited in the parties’ briefs that are relevant to the issues in dispute and to get you up to speed on these issues, this post highlights those cases (all previously covered by FCPA Professor).
Motions To Dismiss Fully Briefed In SEC v. Cohen & Baros
As highlighted in this prior post, in January 2017 the SEC filed a civil complaint against former Och-Ziff executives Michael Cohen and Vanja Baros alleging the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.
The prior post noted that the defendants would be mounting a defense and further noted that the SEC is rarely put to its burden of proof in FCPA enforcement actions (corporate or individual). Indeed, the SEC has never prevailed in FCPA history when put to its ultimate burden of proof.
Late last week, the briefing on the motions to dismiss appeared (all at once) on the court’s docket and this post summarizes the disputed issues which largely center on statute of limitations issues and (as relevant to Baros, a foreign national defendant) general jurisdiction issues as well as FCPA specific jurisdiction issues).
FCPA Flash – A Conversation With Neil Smith (Former Senior Counsel In The SEC’s Enforcement Division) About SEC FCPA Enforcement
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Neil Smith. On July 14th, Smith left the SEC where he served as senior counsel in the Enforcement Division for more than six years and where he was also a member of the SEC’s FCPA Unit. In the podcast, Smith (currently a partner in the Boston office of K&L Gates) discusses SEC remedies in FCPA enforcement actions, the SEC’s theory of enforcement around the FCPA’s internal controls provisions, the impact of the Supreme Court’s recent Kokesh decision on SEC FCPA enforcement, and changes to the FCPA and FCPA enforcement that he would like to see.