This article originally appeared in Mike Koehler’s blog FCPA Professor and is reprinted with his permission.
Like the DOJ, the SEC frequently speaks in lofty rhetoric concerning its focus on holding individuals accountable under the FCPA. For instance, in connection with the recent Garth Peterson enforcement action, Robert Khuzami (then Director of the SEC’s Division of Enforcement) stated (here) that the case “illustrates the SEC’s commitment to holding individuals accountable for FCPA violations.” Likewise, in connection with the 2011 SEC action against Paul Jennings, Cheryl Scarboro (then Chief of the SEC’s Foreign Corrupt Practices Act Unit) stated (here) that the SEC ”will vigorously hold accountable” individuals for FCPA violations.
Since 2005, the SEC has charged 49 individuals with FCPA civil offenses. The breakdown is as follows.
- 2005 – 1 individual
- 2006 – 8 individuals
- 2007 – 7 individuals
- 2008 – 5 individuals
- 2009 – 5 individuals
- 2010 – 7 individuals
- 2011 – 12 individuals
- 2012 - 4 individuals
Similar to the prior DOJ figures, most of the individuals charged – 33 (or 67%) were charged since 2008. Thus, on one level the SEC is correct when it states that individual prosecutions are a focus at least as measured against the historical average given that between 1978 and 2004 the SEC charged 32 individuals with FCPA civil offenses.
Yet on another level, a more meaningful level given that there was much less overall enforcement of the FCPA between 1978 and 2004, the SEC’s statements (like the prior DOJ statements about its focus on individuals) represent hollow rhetoric as demonstrated by the below figures.
Of the 33 individuals charged with civil FCPA offenses by the SEC since 2008:
- 7 individuals were in the Siemens case;
- 4 individuals were in the Willbros Group case;
- 4 individuals were in the Alliance One case;
- 3 individuals were in the Maygar Telekom case; and
- 3 individuals were in the Noble Corp. case.
In other words, 64% of the individuals charged by the SEC with FCPA civil offenses since 2008 have been in just five cases.
Considering that there has been 57 corporate SEC FCPA enforcement actions since 2008, this is a rather remarkable statistic. Of the 57 corporate SEC FCPA enforcement actions, 45 (or 79%) have not (at least yet) resulted in any SEC charges against company employees. This figure is thus higher than the 74% figure (here) highlighted earlier this week regarding the DOJ. This is notable given that the SEC, as a civil law enforcement agency, has a lower burden of proof in an enforcement action.
Once again, like with the DOJ figures, one can ask the “but nobody was charged” question.
Yet, like with the DOJ figures and as highlighted in yesterday’s post (here), there is an equally plausible reason why so few individuals have been charged in connection with many corporate SEC FCPA enforcement actions. The reason has to do with the quality and legitimacy of the corporate enforcement action in the first place.
With the SEC, the issue is not so much NPAs or DPAs (the SEC has used such a vehicle just once to resolve an FCPA enforcement action – Tenaris 2011), but rather the SEC’s neither admit nor deny settlement policy. For more on this policy and its impact of SEC enforcement actions, see pgs. 946-955 of my article “The Facade of FCPA Enforcement.” In the article, I discuss the affidavit of Professor Joseph Grundfest (Standford Law School and former SEC Commissioner) in SEC v. Bank of America and how SEC enforcement actions “typically omit mention of valid defenses and of countervailing facts or mitigating circumstances that, if proven at trial, could cause the Commission to lose it case.” In the article, I also discuss the SEC’s frank admission in the Bank of America case that a settled SEC enforcement action “does not necessarily reflect the triumph of one party’s position over the other.” Individuals in an SEC FCPA enforcement, even if only a civil action, and even if allowed to settle on similar neither admit nor deny terms, have their personal reputation at stake and are thus more likely than corporate entities to challenge the SEC and force it satisfy its burden of proof at trial as to all FCPA elements.
In other words, and like in the DOJ context, perhaps the more appropriate question is not “but nobody was charged,” but rather – do SEC neither admit nor deny FCPA settlements represent provable FCPA violations.
It is also interesting to analyze the 12 instances since 2008 where an SEC corporate FCPA enforcement action resulted in related charges against company employees. With the exception of Siemens, KBR/Halliburton and Magyar Telekom, the corporate SEC FCPA enforcement actions resulting in related charges against company employees occurred in what can only be described as relatively minor (at least from a settlement amount perspective) corporate enforcement actions. These actions are: Faro Technologies, Willbros Group, Nature’s Sunshine Products, United Industrial Corp., Pride Int’l., Noble Corp., Alliance One, Innospec, and Watts Water.