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SEC Commissioner Peirce Unleashes On The SEC’s Neither Admit Nor Deny Settlement Policy

Peirce

Numerous prior posts (see here for the subject matter tag) have focused on the SEC’s neither admit nor deny settlement policy (the so-called “Gag Rule”).

In the FCPA’s modern era, nearly all issuer enforcement actions are resolved through SEC administrative actions most of which include the “neither admit nor deny” settlement language.

In 2018, the New Civil Liberties Alliance (“NCLA”) petitioned the SEC to amend its rule restricting speech in the aftermath of an SEC settlement.

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A Focus On SEC Individuals Actions

SEC

This previous post highlighted various facts and figures from 2023 SEC FCPA enforcement actions against issuers.

This post focuses on SEC FCPA individual actions – both in 2023 and historically.

Like the DOJ, the SEC frequently speaks in lofty rhetoric concerning its focus on holding individuals accountable under the FCPA or other laws.

Set forth below are representative quotes from SEC officials over the years.

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SEC FCPA Enforcement – 2023 Year In Review

SEC

Foreign Corrupt Practices Act enforcement, it’s not just about the DOJ.

Granted, as a civil enforcement agency the SEC’s sticks are less sharp than the DOJ’s, but the SEC also claims a significant piece of the FCPA enforcement pie (query whether it should – but that is a subject for another day – for instance as discussed in “The Story of the Foreign Corrupt Practices Act” the SEC wanted no part in enforcing the FCPA’s anti-bribery provisions and in recent years an SEC Commissioner stated that anti-corruption policy is not within the SEC’s area of expertise nor further to the SEC’s mission – see here).

This post goes in-depth into various facts and figures relevant to SEC FCPA enforcement in 2023.

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Does The SEC Even Need A Specific FCPA Unit?

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When you run a daily website such as this for 13 years there is sometimes a cycle of coverage.

For instance, over the years November posts typically include the fact that the FCPA “tips” are a minor component of the SEC’s whistleblower program (that was yesterday’s post) as well as this post questioning – based on the SEC’s own data – whether the SEC even needs a specific FCPA unit.

In fiscal year 2010, the Securities and Exchange Commission created a specialized FCPA Unit (one of only five in its enforcement division “dedicated to particular highly specialized and complex areas of securities law“).

The below post highlights how, based on the SEC’s own enforcement statistics, FCPA enforcement actions comprise a minuscule percentage of its overall enforcement actions as well as other quantitative and qualitative factors relevant to the question posed.

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FCPA “Tips” Continue To Be A Minor Component Of The SEC’s Whistleblower Program

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The Dodd-Frank Act enacted in July 2010 contained whistleblower provisions applicable to all securities law violations including those under the Foreign Corrupt Practices Act.

In this prior post from July 2010, I predicted that the whistleblower provisions would have a negligible impact on FCPA enforcement. As noted in this prior post, my prediction was an outlier (so it seemed) compared to the flurry of law firm client alerts predicting that the whistleblower provisions would have a significant impact on FCPA enforcement. Many FCPA Inc. participants seemed so eager for a marketing opportunity to sell compliance services, that some even called the generic whistleblower provision the FCPA’s “new” whistleblower provisions.

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