Do SEC enforcement officials realize that words they speak often are contradicted by the reality of SEC’s enforcement program?
For instance, SEC Chair Gary Gensler (pictured) recently gave this speech in which he talked about the SEC’s enforcement enforcement program using five themes: Economic Realities, Accountability, High-Impact Cases, Process, and Positions of Trust.
As to accountability, Gensler stated: [n]othing motivates individuals and firms quite like accountability. We use all of the tools in our toolkit to hold bad actors accountable—including bars, penalties, injunctions, undertakings, and litigating where appropriate.”
As highlighted in this post, over the past three years the SEC has brought 20 corporate FCPA enforcement actions.
Issuers can of course only act through the conduct or real human beings and thus, by definition, the enforcement actions have been based on the conduct of real human beings.
However, in connection with the 20 corporate FCPA enforcement actions, the SEC has not charged or found one individual to be in violation of the FCPA.
As to process, Gensler stated: “process also is about timeliness—working to bring matters to a thoughtful yet expeditious resolution.”
Thus far in 2023, the SEC has brought 9 corporate FCPA enforcement actions and set forth below is the length of time the company was under FCPA scrutiny.
- Rio Tinto – 6.5 years
- Flutter International – 6.5 years
- Frank’s International – 7 years
- Philips – 4 years
- Gartner – 4.5 years
- Grupo Aval – 5 years
- 3m – 4 years
- Clear Channel Holdings – 5.5 years
- Albemarle – 5.5 years
The SEC’s enforcement program is of course broader than just the Foreign Corrupt Practices Act.
But then again, comparing Gensler’s statements to the reality of FCPA enforcement is not looking at the issues by reference to an obscure corner of SEC enforcement.
Rather, the SEC’s FCPA Unit is one of just five specialized units within the SEC’s enforcement division.
