Largest SEC Only FCPA Enforcement Actions
So-called “issuers” under the Foreign Corrupt Practices Act (that is generally companies with shares traded on a U.S. exchange or otherwise with reporting obligations to the Securities and Exchange Commission) are subject to both Securities and Exchange Commission and Department of Justice FCPA enforcement.
However, many FCPA enforcement actions against issuers are SEC only and lack a DOJ component. Although FCPA enforcement agencies rarely have to “prove” an FCPA violation against issuers (rather issuers typically resolve an enforcement action through a resolution vehicle not subjected to any meaningful judicial scrutiny), theoretically the DOJ in a criminal action has a much higher burden of proof (beyond a reasonable doubt) compared to the SEC in a civil action (preponderance of the evidence).
Regardless of the reasons for SEC enforcement actions against issuers that lack a DOJ component, set forth below are the 25 largest SEC only FCPA enforcement actions.
SEC Commissioner Hester Peirce Continues To Object To Various Aspects Of A Large Majority Of FCPA Enforcement Actions
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 during the prior fiscal year.
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 during the prior fiscal year.
This 2022 post checked in on Peirce’s FCPA voting record and highlighted how Peirce objected (in whole or in part) to the bulk of corporate FCPA enforcement actions during the prior fiscal year.
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 a large majority of corporate FCPA enforcement actions during the prior fiscal year.
The Gap In SEC Individual FCPA Enforcement Actions Is Over Three 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.
That Was Then, This Is Now
To best understand (and place in context) current SEC FCPA enforcement positions and policies, it is useful to understand past SEC FCPA enforcement positions and policies.
The year was 1981, the event was the American Institute of Certified Public Accountants, and the speaker was Harold Williams, the Chairman of the SEC. The speech did not contain the standard disclaimer (i.e. I am just an individual and not speaking on behalf of the SEC), rather Williams specifically stated that his remarks “constitute a statement of the Commission’s policy.”
Williams focused his remarks (here) “solely to one major auditing development of recent years: the accounting provisions of the Foreign Corrupt Practices Act of 1977″ and stated that “the anxieties created by the Foreign Corrupt Practices Act – among men and women of utmost good faith – have been, in my experience without equal.”
Williams tried to damper these anxieties and spoke about the scope of the provisions including when an enforcement action would be warranted.
The Gap In SEC Individual FCPA Enforcement Actions Is Approaching Three 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.