The Internet is littered with FCPA Mid-Year Assessments and reports on enforcement activity and so-called trends and developments. Talk about making mountains out of molehills. Some of the reports are excellent; others are rehashes filled with “analysis” that are intended to promote FCPA fear marketing.
Most importantly, the reports suggest that the numbers reflect intentional increases or decreases in enforcement of the FCPA. That is a real mistake. Long-term investigations are just that – long-term. The flow of cases, settlements and indictments go up and down.
Prosecutors do not have quarterly targets or requirements. They follow the evidence, negotiate with defense counsel, and resolve cases. That is their job. They do not look at quarterly numbers.
Furthermore, the ebbs and flows in case numbers do not reflect whether or not prosecutors are continuing to enforce the FCPA. We know that FCPA enforcement is here to stay – not even the Chamber of Commerce can slow it down.
If anything, the enforcement trend will go up as more resources are applied to the battle against corruption. In this regard, US Attorney’s Offices are devoting more resources and time to FCPA enforcement. The FCPA Unit is leveraging its resources by enlisting the support of AUSAs. As a result, more prosecutors and more agents are available to work on FCPA cases.
The SEC’s FCPA Unit Chief, Kara Brockmeyer, was recently interviewed and restated the SEC’s commitment to aggressive enforcement of the FCPA. She specifically noted that several significant cases would be resolved soon – obviously referring to Avon and some other major investigations. Of course, she was restating what everyone already knows – FCPA enforcement will continue.
Ms. Brockmeyer further explained that industries that have not experienced an enforcement action should not become complacent. We all know that much of the enforcement activity has been focused on energy, medical device/pharmaceutical, and high-tech companies. More industries are under scrutiny.
Interestingly, Ms. Brockmeyer explained that the SEC is developing new cases from its own sources, aside from whistleblower complaints and voluntary disclosures. She indicated that the SEC is getting smarter at identifying potential corruption activities. This is not surprising since every enforcement program goes though a maturation process as prosecutors and investigators develop institutional knowledge.
Recently, the SEC has been criticized for the length of its investigations and failure to resolve cases that need to be resolved. This is especially troubling when the Justice Department has reached a resolution but the SEC continues to investigate.
Justice delayed can be justice denied and the SEC has to remain vigilant in resolving its cases in a timely manner. Its failure to do so reflects poorly on the SEC’s management of its cases. If the Justice Department has reached a resolution, the SEC should do the same as quickly as possible.
In the months to come, there will be several significant prosecutions. You can count on that. There may be nuances and modifications to enforcement strategies but the bottom line is clear – FCPA enforcement is here to stay and companies need to continue their commitment to ethics and compliance.