SEC Commissioner Peirce Continues To Object To Various Aspects Of Nearly Every FCPA Enforcement Action
This 2020 post highlighted how SEC Commissioner Hester Peirce objected (in whole or in part) to approximately 65% of the corporate FCPA enforcement actions she voted on.
This 2021 post checked in on Peirce’s FCPA voting record as a Commissioner and highlighted how Peirce objected (in whole or in part) to another large batch of corporate FCPA enforcement actions.
This post checks back in on Peirce FCPA voting record as a Commissioner and once again highlights how Peirce has objected (in whole in part) to nearly every recent corporate FCPA enforcement action.
The Gap In SEC Individual FCPA Enforcement Actions Now Exceeds Two Years
One reason to take FCPA enforcement agency rhetoric with a grain of salt is because it is warranted.
For instance, the FCPA enforcement agencies often talk about the importance of x and how they are committed to x, but in reality rarely do x.
Case in point is SEC individual FCPA enforcement actions.
For many years, SEC enforcement officials have talked about the importance of individual FCPA enforcement actions and set forth below are representative quotes from over the years.
The Gap In SEC Individual FCPA Enforcement Actions Is Approaching Two Years
One reason to take FCPA enforcement agency rhetoric with a grain of salt is because it is warranted.
For instance, the FCPA enforcement agencies often talk about the importance of x and how they are committed to x, but in reality rarely do x.
Case in point is SEC individual FCPA enforcement actions.
For many years, SEC enforcement officials have talked about the importance of individual FCPA enforcement actions and set forth below are representative quotes from over the years.
SEC Commissioner Peirce Hits Another Home Run
This site is a big fan of SEC Commissioner Hester Peirce.
Recently, the SEC announced a $100 million enforcement action against “Ernst & Young LLP (EY) for cheating by its audit professionals on exams required to obtain and maintain Certified Public Accountant (CPA) licenses, and for withholding evidence of this misconduct from the SEC’s Enforcement Division during the Division’s investigation of the matter.”
Commissioner Peirce agreed that the underlying cheating was worthy of an enforcement action, but nevertheless objected to the SEC’s settlement.
As discussed below, her reasoning – along the lines of “give the SEC an inch and they will take a mile” – are often present in Foreign Corrupt Practices Act enforcement actions as well.
Moreover, several of Commissioner Peirce’s objecting rationales are often present in FCPA enforcement action as well – such as her statement that “what [the SEC or an SEC Commissioner] might prefer and what one might do as a matter of prudence should not be confused with what one must do as a consequence of a legal obligation.”
The Latest Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests
The Foreign Corrupt Practices Act has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.
However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery and these provisions are among the most generic legal provisions one can possibly find.
These so-called non-FCPA FCPA enforcement actions often present a perplexing issue. That is, the same legal violation is generally enforced by the SEC in different ways.