The only category of actor that both the DOJ and SEC can bring a Foreign Corrupt Practices Act enforcement action against are “issuers” (the 78dd-1 portion of the FCPA).
The other two categories of actors covered by the FCPA, “domestic concerns” (78dd-2) and “persons other than issuers or domestic concerns” (78dd-3) are only subject to DOJ FCPA enforcement actions.
This post analyzes the percentage of SEC FCPA enforcement that also involve a DOJ component.
Before highlighting the yearly and aggregate statistics, it is not surprising that the DOJ does not join every issuer FCPA enforcement action brought by the SEC. Even though the DOJ and SEC are almost never put in a position to prove an FCPA violation against an issuer, theoretically the DOJ’s burden of proof is a very high beyond a reasonable doubt whereas the SEC’s civil burden of proof is merely a preponderance of the evidence.
