In this recent Corporate Crime Reporter interview, former SEC FCPA Unit Chief Kara Brockmeyer was asked: “are you noticing since you left the SEC a shift to the Justice Department not joining the SEC as much on FCPA cases?”
Borckmeyer responded: “When you are at the government for a long period of time, you see the pendulum swing back and forth. Yes, we are in a period, particularly in the FCPA area, where we saw the Department of Justice step away from a number of cases that were SEC only FCPA enforcement actions. There was a period of time where the Department was on every case that the SEC brought in the FCPA area. Now, the Department seems to be picking their battles on where they want to expend their resources.”
What do the numbers actually show? As highlighted below, between 2010 and 2014 the DOJ was involved in approximately 70% of SEC enforcement actions. Between 2015 to the present, the DOJ was involved in approximately 40% of SEC enforcement actions. [Keep in mind that the universe of enforcement actions (i.e. the denominator) is not that large and each enforcement action comprises approximately 2% of the total]
Before highlighting the yearly and aggregate statistics, it is not surprising that the DOJ does not join every issuer Foreign Corrupt Practices Act enforcement action brought by the SEC.
Even though the DOJ and SEC are almost never put in a position to prove an FCPA violation against an issuer, theoretically the DOJ’s burden of proof is a very high beyond a reasonable doubt whereas the SEC’s civil burden of proof is merely a preponderance of the evidence.
2019
Thus far, the SEC has brought 4 corporate enforcement actions and the DOJ has been involved in 3 of the 4 (75%) enforcement actions.
2018
The SEC brought 14 corporate enforcement actions and the DOJ was involved in 5 of the 14 (36%) enforcement actions.
2017
The SEC brought 7 corporate enforcement actions and the DOJ was involved in 3 of the 7 (43%) enforcement actions.
2016
The SEC brought 24 corporate enforcement actions and the DOJ was involved in 11 of the 24 (46%) enforcement actions.
2015
The SEC brought 9 corporate enforcement actions and the DOJ was involved in 0 of the 9 (0%) enforcement actions.
2014
The SEC brought 7 corporate enforcement actions and the DOJ was involved in 4 of the 7 (57%) enforcement actions.
2013
The SEC brought 8 corporate enforcement actions and the DOJ was involved in 6 of the 8 (75%) enforcement actions.
2012
The SEC brought 8 corporate enforcement actions and the DOJ was involved in 5 of the 8 (63%) enforcement actions.
2011
The SEC brought 13 corporate enforcement actions and the DOJ was involved in 8 of the 13 (62%) enforcement actions.
2010
The SEC brought 19 corporate enforcement actions and the DOJ was involved in 15 of the 19 (79%) enforcement actions.
Aggregating the above yearly statistics into five year periods:
- Between 2010 – 2014, the SEC brought 55 corporate enforcement actions and the DOJ was involved in 38 of the 55 (69%) enforcement actions.
- Between 2015 – present, the SEC brought 58 corporate enforcement actions and the DOJ was involved in 22 of the 58 (38%) enforcement actions.
During her Corporate Crime Report interview, Brockmeyer also spoke of various “aggressive enforcement theories.” I generally chuckle when I read or hear such comments from a former high-ranking FCPA enforcement official.
Were the enforcement theories “aggressive” when Brockmeyer headed the SEC’s FCPA Unit between 2011 – 2017? If so, were the enforcement theories problematic then?
