The SEC (like the DOJ) often talks about the importance of individual FCPA enforcement actions. For instance, SEC enforcement officials have stated:
“Companies cannot engage in bribery without the actions of culpable individuals. The Enforcement Division is broadly committed to holding individuals accountable when the facts and the law support doing so.”
“Pursuing individual accountability [in FCPA enforcement actions] is a critical part of deterrence.”
“The Commission is committed to holding individuals accountable and … you will continue to see more FCPA cases against individuals.”
“[I]n the FCPA arena as well as all other areas of our enforcement efforts, we are very focused on attempting to bring cases against individuals. […] [I]ndividual accountability is critical to FCPA enforcement — and imposing personal consequences on bad actors, including through bars and monetary sanctions, will continue to be a high priority for us.”
Yet, actions speak louder than words and the SEC has not brought an individual Foreign Corrupt Practices Act enforcement action in over a year. (See here for the prior post regarding the July 27, 2017 enforcement action against Halliburton and a former Vice President).
This is not some isolated fact. Indeed, SEC individual FCPA enforcement action in 2017 were lower than in 2016 (See here for historical numbers).
Another way to analyze the SEC’s empty rhetoric when it comes to individual accountability is through the following statistic. Since 2016, the SEC has brought 13 corporate enforcement actions and just 1 (7%) involved related SEC charges against a company employee (the Halliburton enforcement action referenced above).
The SEC did bring individual FCPA charges in early January 2017 against Michael Cohen and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff. However, as highlighted in this recent post, those charges were dismissed based on statute of limitations grounds.
