Say what you will – the SEC is making its mark this year in FCPA enforcement. So far, the SEC has brought nine separate enforcement actions, the latest with Bristol-Myers Squibb. I am sure we will see more before the end of the year.
The SEC’s success reflects the investment they made in a new enforcement structure, the creation of the FCPA Section, and the use of enforcement attorneys from around the country in SEC offices. Nothing in the FCPA world is immediate, but a sustained effort and commitment, like the SEC’s, is now bearing fruit.
A cynical response to the SEC’s productive year may be its use of administrative procedures, but I think a more realistic explanation is the time and investment and growing experience of SEC enforcement attorneys, along with the organizational changes.
Government agencies reflect the tone at the top of their respective organizations. Mary Jo White has put her mark on the SEC in general, and she has ensured that the SEC’s FCPA focus has been consistent.
For some inexplicable reason, the Justice Department is off on its own course (where they are going no one really knows), but I am sure they will soon reappear on the FCPA front. Some have suggested that personnel changes in the Fraud Section supervisory levels has led to a slowdown and bureaucratic delays, frustrating the work of DOJ’s FCPA Unit.
One thing you can always count on at DOJ – if the matter becomes high-profile, more supervisors and more higher ups will want to review and add their two cents to the hard work and efforts of line prosecutors and agents who put a case together.
DOJ’s press spokesperson put out a strange and puzzling message last week that DOJ is dedicating itself to “high-impact” corruption cases, suggesting somehow that what DOJ was doing before was “low-impact” or “lower” impact. Word games like this only undermine DOJ’s prosecutors and the hard work they put in on FCPA cases. Frankly, I have no idea what is meant by “high impact” cases. From my perspective, almost every case DOJ has brought has been a high-impact case because of the message sent, and the increased attention of corporate executives, general counsel, and compliance officers.
DOJ and the SEC have created a significant global trend that has resulted in increased corporate focus on ethics and compliance. Additionally, and some may argue more importantly, DOJ and the SEC have created a global anti-corruption enforcement movement that has united leaders, prosecutors, and law enforcement in the battle against corruption.
For now, the SEC is carrying the FCPA ball – no one should think that DOJ has vanished or abandoned its efforts. DOJ’s work will continue, notwithstanding bureaucratic obstructionists, and ultimately, DOJ will make its mark again with FCPA enforcement actions.
The SEC’s enforcement actions continue to dominate FCPA enforcement headlines. In the last quarter of this year, the SEC is expected to bring enforcement actions resulting from its Princeling investigations of the hiring of relatives of foreign officials and resolve several long-standing investigations.