SEC Co-Director Of Enforcement Peikin On Success And Remedies
Recently, Steven Peikin (Co-Director of the SEC’s Division of Enforcement) gave this speech in which he talked about the meanings of success of the SEC’s enforcement program as well as the remedies and relief available to the SEC in enforcement actions.
While not Foreign Corrupt Practices Act specific, Peikin’s speech was FCPA relevant and portions of the speech (along with commentary) are excerpted below.
Stephanie Avakian (Co-Director Of The SEC’s Enforcement Division) Ponders The Meaning Of Success
In this, the Foreign Corrupt Practices Act’s 40th year, it is prudent to take a step back and ponder the question of whether the FCPA has been successful in achieving its objectives. This of course begs the question: what is the definition of success? (See here a 25 minute video which explores this issue, see also posts here, here, and here).
Recently, Stephanie Avakian (Co-Director of the SEC’s Enforcement Division) delivered this speech. While the speech does not specifically mention the FCPA, Avakian nevertheless ponders the meaning of success when it comes to SEC enforcement (and after all, the SEC does have a specialized FCPA Unit – one of only five such specialized units).
It’s Been Over A Year Since The SEC Has Brought An Individual FCPA Enforcement Action
The SEC (like the DOJ) often talks about the importance of individual FCPA enforcement actions. For instance, SEC enforcement officials have stated:
“Companies cannot engage in bribery without the actions of culpable individuals. The Enforcement Division is broadly committed to holding individuals accountable when the facts and the law support doing so.”
“Pursuing individual accountability [in FCPA enforcement actions] is a critical part of deterrence.”
FCPA Flash Podcast – A Conversation With Harold Kim (U.S. Chamber Institute For Legal Reform) On FCPA Enforcement Policy And Reform
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 Harold Kim (Executive Vice President, U.S. Chamber Institute for Legal Reform). During the podcast, Kim discusses recent DOJ FCPA enforcement policy developments, the continued viability of an FCPA compliance defenses, as well as the general lack of FCPA policy developments from the SEC.
A Summary Of The SEC’s Trial Court Woes In FCPA Enforcement Actions
This recent post summarized the dismissal of the SEC’s Foreign Corrupt Practices Act (and related) charges against against Michael Cohen and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff. The enforcement action is believed to be only the fourth time in FCPA history in which the SEC was put to its ultimate burden of proof in an FCPA enforcement action.
As highlighted in this post, the SEC also lost in the other three instances and in the FCPA’s 40 year history the SEC has never prevailed when put to its ultimate burden of proof.