FCPA Flash – A Conversation With Ty Cobb Regarding FCPA Enforcement And Enforcement Policies
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 expect from the written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Ty Cobb (Hogan Lovells), a former federal prosecutor and widely regarded as one of the leading white collar defense attorneys in the country. In the episode, Cobb discusses whether the SEC should formally announce an FCPA Pilot Program similar to what the DOJ announced in April 2016; the lack of judicial scrutiny of FCPA enforcement actions; what “success” means in FCPA enforcement; and dynamics relevant to foreign law enforcement actions concerning FCPA or similar conduct.
SEC Chair White On The FCPA
Earlier this week SEC Chair Mary Jo White delivered this speech.
Her speech focused on “a few priority areas that illustrate the dimensions of the SEC’s international role” and a substantial portion of the speech focused on the Foreign Corrupt Practices Act including how “vigorous enforcement of the FCPA is a high priority for both the SEC and DOJ.”
On individual actions, Chair White stated: “we prioritize charging individuals involved in bribery schemes where we have the necessary evidence and jurisdiction over the offender [and that] holding individuals accountable for their misconduct remains one of the most powerful deterrents in any enforcement area.”
Keep in mind however the following facts. In 2016 thus far, 70% of corporate SEC FCPA enforcement actions have not involved any related individual charges and since 2008 approximately 80% of corporate SEC FCPA enforcement actions have not involved any related individual charges.
The remainder of this post excerpts the FCPA portion of Chair White’s speech.
FCPA Flash – A Conversation With Thomas Gorman
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 the written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Thomas Gorman, a lawyer with Dorsey & Whitney. Prior to private practice, Gorman spent several years at the SEC including as Senior Counsel in the SEC’s Division of Enforcement. Gorman focuses his practice on SEC and related public company issues including those arising under the Foreign Corrupt Practices Act. In addition, Gorman founded and runs the informative SEC Actions blog.
In the episode, Gorman talks about the FCPA’s books and records and internal controls provisions using the recent Las Vegas Sands enforcement action as a guide (see prior posts here and here). In addition, Gorman responds to the following questions: whether the books and records and internal controls provisions are essentially standardless and whether the SEC, with the perfect benefit of hindsight, advances expansive theories of liability; and whether with ever-expanding theories of enforcement, the time has come for an issuer to put the SEC to its burden of proof in an FCPA enforcement action.
Two For Tuesday In FCPA Enforcement Land – First Up Nortek
Just when you think you’ve seen all possible combinations of Foreign Corrupt Practices Act enforcement, along comes yesterday’s “two for Tuesday” in which the SEC announced in the same press release two non-prosecution agreements against two separate companies and the DOJ simultaneously released two so-called “declination” letters against the same two companies.
This post highlights the enforcement action against Nortek Inc. and a second post today highlights the enforcement action against Akamai Technologies. From there future posts will highlight issues to consider from the enforcement actions (and there are many including the question of just what charges – based on the SEC’s statement of facts – did the DOJ actually decline?”).
FCPA Flash – A Conversation With Colby Smith
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 the written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Colby Smith (Debevoise & Plimpton). Smith is the Co-Chair of the firm’s Securities Litigation Practice and his practice focuses primarily on securities class action and derivative litigation, SEC and other regulatory enforcement matters, and internal corporate investigations, including those arising under the FCPA.
In the episode, Smith discusses the prominence of disgorgement in SEC FCPA enforcement actions, the questionable use of the disgorgement remedy in FCPA enforcement actions that did not charge or find anti-bribery violations, and notable and disputed issues that arise in SEC FCPA enforcement actions.