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Friday Roundup


Just don’t call it bribery, help wanted at the DOJ, and SEC names a new enforcement director. It’s all here in the Friday roundup.

Just Don’t Call It Bribery

Even though this past January’s presidential inauguration was substantially scaled down from prior inaugurations because of COVID, according to this article President Biden’s inaugural committee raised $61.8 million for the televised virtual event.

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Is The SEC Finished With NPAs And DPAs?

Women Thinking

In early 2010, the SEC (see here) announced a series of measures “to further strengthen its enforcement program by encouraging greater cooperation from individuals and companies in the agency’s investigations and enforcement actions.”

The SEC’s then Director of Enforcement called the measures “a potential game-changer for the Division of Enforcement.”

Among the measures the SEC adopted was use of deferred prosecution agreements and non-prosecution agreements – resolution vehicles the SEC described as “tools [that] have been regularly and successfully used by the Justice Department in its criminal investigations and prosecutions” (which of course was and still remains a debatable point).

However, since this “game-changing” moment at the SEC over a decade ago, the agency has only used a DPA twice to resolve an issuer FCPA enforcement action and an NPA three times. Moreover, the SEC’s last use of an NPA or DPA to resolve an issuer FCPA enforcement was in mid-2016. All of which begs the question: is the SEC finished using NPAs and DPAs to resolve issuer FCPA enforcement actions?

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SEC Commissioner Calls The SEC’s Approach To Corporate Penalties “Fundamentally Flawed”


In the FCPA’s modern era of enforcement, the bulk of SEC settlement amounts consist of disgorgement and prejudgment interest (See here). Stated differently (and although there have been a few notable exceptions), civil penalties are not a major feature of most corporate SEC Foreign Corrupt Practices Act enforcement actions.

Even so, SEC civil penalties can be FCPA relevant and it is thus interesting to note that SEC Commissioner Caroline Crenshaw (appointed by President Trump and sworn into office in August 2020) recently stated that the SEC’s historical practice of placing emphasis on factors beyond the actual misconduct when imposing corporate penalties is “fundamentally flawed.”

In this recent speech before the Council of Institutional Investors , Crenshaw began by stating how an SEC decision made 15 years (see here) “has taken us off course.”

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SEC Commissioner Hester Peirce Continues To Object To Various Aspects Of FCPA Enforcement


This June 1, 2020 post detailed how SEC Commissioner Hester Peirce has objected to numerous FCPA enforcement actions brought by the Securities and Exchange Commission during her tenure.

As highlighted below, since the June 2020 post, the SEC has brought seven FCPA enforcement actions and Peirce has objected to various portions of … well … every single one.

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A Focus On SEC Individual Actions


This previous post highlighted various facts and figures from 2020 SEC FCPA enforcement actions against issuers.

This post focuses on SEC FCPA individual actions – both in 2020 and historically.

Like the DOJ, the SEC frequently speaks in lofty rhetoric concerning its focus on holding individuals accountable under the FCPA. As highlighted here, in 2020 the SEC’s Co-Director of Enforcement stated: “[A] critical part of our program continues to be seeking to deter wrongdoing by holding individuals accountable

As highlighted here, in 2018 the SEC’s Co-Director of Enforcement stated:

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