In remarks at NYU’s Program on Corporate Compliance and Enforcement, Steven Peikin, the new Co-Director of the SEC’s Enforcement Division, voiced a question that has been on the minds of many anticorruption practitioners and compliance professionals: Will the SEC continue to be committed to robust FCPA enforcement?” “My answer to that question is simple,” Peikin said. “Yes.”
Peikin observed that the FCPA has been “a fundamental part of the SEC’s enforcement mission” for the last 40 years and left little doubt that it will remain so. He touted the SEC’s decision in 2010 to create a specialized FCPA enforcement Unit, which has “yielded significant results” in terms of successful cases, expertise, and international cooperation. He also lauded the FCPA Unit’s new chief and predicted that, under his leadership, “you can expect our efforts in this area to continue apace.” And he placed FCPA enforcement in the broader context of combating the myriad of societal issues that accompany bribery and corruption, including instability, inequality, poverty, and anti-competitive business environments.
In his remarks, Peikin also emphasized the importance of international cooperation, declaring that the U.S. “cannot – and should not – go it alone in fighting corruption.” But he observed that such cooperation has been strong and getting stronger. In particular, he noted that the SEC has publicly acknowledged assistance from nineteen different jurisdictions in FCPA matters over the past fiscal year. He also highlighted two recent global anticorruption settlements arising from U.S. cooperation with the Netherlands and Sweden in one case and with Brazil and Switzerland in another. Such cooperation and coordination, Peikin contended, not only sends strong messages of deterrence, but also leads to more efficient FCPA investigations and enforcement actions.
Peikin also highlighted the importance of individual, and not just corporate, accountability, calling it a “core principle of our enforcement program.” He noted that because individual accountability drives behavior more than corporate accountability, the SEC will continue its “intense focus on the question of individual responsibility in every FCPA investigation.”
Finally, Peikin acknowledged a major challenge the Commission faces in pursuing FCPA claims: time. Given their factual complexity and the need to collect evidence from abroad, FCPA investigations can take years to develop. But now that the Supreme Court has held, in SEC v. Kokesh, that disgorgement claims (a staple of FCPA enforcement) are subject to the general five-year statute of limitations, the SEC may have greater difficulty bringing cases before the statute expires. Under these circumstances, Peikin said that that “we have no choice but to respond by redoubling our efforts to bring cases as quickly as possible.” What that will mean in practice remains to be seen.