Listening in, SEC work continues, and for the reading stack. It’s all here in the Friday roundup.
As highlighted in this recent post, Herbalife recently disclosed that it is poised to pay $123 million to resolve its long-standing FCPA scrutiny. In a recent investor conference call, John Agwunobi (CEO of the company) stated about the company’s disclosure: “we do believe that it [the disclosure] has freed us of any material, nonpublic information that would have affected our ability to repurchase shares.”
Goes to show that FCPA scrutiny and enforcement are often entwined with other legal issues.
SEC Work Continues
Recently Steven Peikin (Co-Director of the SEC Division of Enforcement) delivered this speech. Regarding the SEC’s work during the COVID-19 crisis, Peikin stated:
Like most of you, the SEC Staff have been teleworking since March. The disruption and changed work environment has had – and will continue to have – a substantial impact on the activities of the Division of Enforcement. But I am gratified to report that we have continued to execute on our important mission to protect investors, promote capital formation, and maintain fair and orderly markets.
Since the onset of the crisis, Division staff have been engaged in virtually every facet of our work, from opening new cases, to taking remote testimony, to having Wells meetings, to filing litigated and settled actions, and even conducting jury trials.
Before I describe some of the most significant results, I want to say a word about how we have tried to interact with the people and entities who are on the other side of our investigations, whether as witnesses, custodians, or opposing counsel. We understand that we are all confronting many of the same difficulties, regardless of where we sit. But if we in the Division of Enforcement are to continue to fulfill our important responsibilities, we cannot effectively shut down our program by agreeing to a blanket hiatus in investigations or litigation. That being said, our staff has been directed to work with counsel and others to reach reasonable accommodations wherever possible. The flipside of this, which I hope goes without saying, is that we cannot permit the crisis to be used as a cover for gamesmanship.
One additional note on this: we are keenly focused on matters where we face expiring statutes of limitations that may result in the Commission losing claims or potential remedies, such as the ability to seek penalties or disgorgement. In those instances where we are unable to obtain tolling agreements to complete our investigation and we believe the existing record supports enforcement action, we will consider recommending that the Commission authorize an action, and will seek to supplement our evidence through civil discovery. In other words, we will do everything we can to protect the Commission’s claims and remedies in the face of this crisis.
[W]hat lies ahead?
Obviously, much is uncertain. We do not know how long this crisis will last or what its ultimate impact will be. But I do expect that the Division of Enforcement will continue to do its work, and its ability to function remotely and virtually will continue to improve.”
An informative article here from Shearman & Sterling attorneys titled “Civil Litigation in the Aftermath of FCPA and U.K. Bribery Act Investigations.”
“This piece offers an introduction of the most common claims a corporation can face in the aftermath of an anti-bribery investigation in the U.S. and the U.K. and describes the significant losses that may be associated with those claims.”