Category: Foreign Corrupt Practices Act (FCPA)
Andrew J. Ceresney, Director of the Division of Enforcement, reaffirmed the SEC’s focus on FCPA enforcement actions at the International Conference on the Foreign Corrupt Practices Act. Mr. Ceresney’s speech focused on companies’ need to self-report violations.
Mr. Ceresney stated that the SEC uses “a carrot and stick approach to encouraging cooperation,” where self-reporting companies can receive reduced charges and deferred prosecution and non-prosecution agreements, while companies that do no self-report do not receive any reduction in penalties. Mr. Ceresney warned that “companies are gambling if they fail to self-report FCPA misconduct.”
Mr. Ceresney gave examples of how this policy has benefited companies recently. Mr. Ceresney highlighted the SEC’s decision not to bring charges against the Harris Corporation after it self-reported violations and mentioned to examples where the SEC entered into non-prosecution agreements as a result of self-reporting.
Mr. Cerseney stated that the … Read More »
We previously wrote about decisions in SEC v. Graham from the Eleventh Circuit, __ F.3d __, No. 14-13562, 2016 WL 3033605 (11th Cir. May 26, 2016), and the U.S. District Court for the Southern District of Florida, 21 F. Supp. 3d 1300 (S.D. Fla. 2014), considering whether disgorgement claims and other remedies were subject to five-year statute of limitations on actions “for the enforcement of any civil fine, penalty, or forfeiture” codified in 28 U.S.C. § 2462. The Eleventh Circuit affirmed the decision of the lower court that the SEC’s disgorgement claims were time-barred, holding that “disgorgement” is synonymous with the plain meaning of “forfeiture” as it is used in the statute.
On May 6, 2016—shortly before the Eleventh Circuit issued its ruling in Graham—the IRS published non-precedential Chief Counsel Advice (“CCA”) on whether Internal Revenue Code Section 162(f) bars business expense … Read More »
Two Companies Avoid FCPA Charges through NPAs that Underscore the Value of Self-Reporting and Cooperation with the SEC
The SEC announced two non-prosecution agreements on June 7, 2016 that companies entered into to avoid charges related to the payment of bribes to Chinese officials by their foreign subsidiaries. Press Rel. No. 2016-109. Pursuant to the NPAs, each company will forfeit gains related to the bribes, but the NPAs stipulate that the companies are not charged with violations of the FCPA and will not pay additional monetary penalties.
The SEC’s announcement of the NPAs emphasizes the value the staff put on the companies’ promptly self-reporting the misconduct, cooperating with the SEC, and quickly taking corrective action. The NPAs identified several actions taken by each company that weighed in their favor, including: (i) reporting to the SEC during their internal investigations; (ii) sharing detailed findings of the investigations and updating enforcement staff regarding new information; (iii) providing summaries of witness interviews … Read More »
Made for the U.S.A Only: Second Circuit Holds That the Dodd-Frank Act’s Antiretaliation Provision Applies Only Domestically
According to the SEC, in fiscal year 2013, foreign whistleblowers accounted for 404 of the 3,238 whistleblower reports received by the SEC (nearly 12%). Recently, the Second Circuit Court of Appeals may have significantly undermined incentives for foreign tipsters to report potential violations to the SEC.
On August 14, 2014, the Second Circuit held that the Dodd-Frank Act’s whistleblower antiretaliation provision (15 U.S.C. § 78u-6(h)(1)) does not apply “extraterritorially” and thus did not cover a foreign tipster’s allegation that he had been terminated for reporting potential Foreign Corrupt Practices Act (FCPA) violations to his employer. Liu v. Siemens AG, Docket No. 13-cv-4385 (2d Cir. Aug. 14, 2014). The antiretaliation provision of the Dodd-Frank Act, which gives employees easy access to U.S. district courts, prohibits employers from retaliating against whistleblowers employees who make certain protected disclosures. The provision incentivizes reporting and facilitates … Read More »
Eleventh Circuit Defines “Instrumentalities” of Foreign Government for the Purposes of the Foreign Corrupt Practices Act
In general, the Foreign Corrupt Practices Act (“FCPA”) prohibits the payment of money or anything of value to a foreign official in order to influence any act or decision of the foreign official in his or her official capacity or to secure any improper advantage in order to obtain or retain business. See 15 U.S.C. § 78dd-1. “Foreign official” is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof . . . .” Id. at §78dd-1(f)(1)(A) (emphasis added). The DOJ and SEC have routinely relied on the term “instrumentality” to charge unlawful payments made to employees of various state-owned entities, such as employees of state-owned hospitals, oil companies, and telecommunication companies.
According to the Resource Guide issued by the Criminal Division of the DOJ and the Enforcement Division of the SEC, whether a … Read More »