Many Foreign Corrupt Practices Act (FCPA) practitioners tend to focus on Department of Justice (DOJ) FCPA enforcement actions, while not focusing on FCPA enforcement by the Securities and Exchange Commission (SEC). This article will provide a deep dive into some of the key differences between DOJ enforcement of the FCPA with that of the SEC. The differences start with the fact that the DOJ enforces the criminal side of the FCPA and the SEC the civil side. But the SEC has responsibility for enforcing a separate set of obligations in addition to the anti-bribery proscription.
I. Jurisdictional Issues
I begin with reviewing some jurisdictional issues unique to the SEC; commonly referred to as the FCPA accounting provisions, they consist of the books and records provisions which, as set out in the FCPA Guidance, requires that “issuers must make and keep books, records, and accounts that, in reasonable detail, accurately and fairly reflect an issuer’s transactions and dispositions of an issuer’s assets and internal controls requirements.” Under the internal controls provisions, “issuers must devise and maintain a system of internal accounting controls sufficient to assure management’s control, authority, and responsibility over the firm’s assets.”
Perhaps the most interesting thing about the ‘accounting provisions’ under the FCPA as stated in the FCPA Guidance, is as follows: “Although the accounting provisions were originally enacted as part of the FCPA, they do not apply only to bribery-related violations. Rather, the accounting provisions ensure that all public companies account for all of their assets and liabilities accurately and in reasonable detail”. [emphasis supplied] This means there can be strict liability for stand alone violations of these provisions, with no ties back to the corrupt intent or elements of a FCPA violation are present.
A. Who is covered under SEC enforcement of the FCPA?
The SEC prosecutes ‘issuers’ who are defined as a company “that has a class of securities registered pursuant to Section 12 of the Exchange Act or that is required to file annual or other period reports pursuant to Section 15(d) of the Exchange Act.” The SEC also enforces the FCPA against companies “whose securities trade on a national securities exchange in the United States, including foreign issuers with exchange traded American Depository Receipts” and trade in over-the counter markets. While the SEC does not bring enforcement actions against private companies, private companies are also subject to the FCPA, just as public companies for bribing a foreign government official, in violation of the FCPA.
B. Accounting Provisions
Consistent with the concern that bribe payments are often disguised as other types of payments in a company’s books and records, “requires issuers to “make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer.”” The “in reasonable detail” qualification was adopted by Congress “in light of the concern that such a standard, if unqualified, might connote a degree of exactitude and precision which is unrealistic.” The addition of this phrase was intended to make clear “that the issuer’s records should reflect transactions in conformity with accepted methods of recording economic events and effectively prevent off-the-books slush funds and payments of bribes.”
The Guidance goes on to give several examples of SEC enforcement actions of the books and record provisions where bribes were mischaracterized in a company’s books and records. Such examples include bribes paid out in the guise of commissions, royalties or consulting fees. Another prominent example includes reimbursement for sales and marketing or miscellaneous expenses where no such activity occurred. A favorite has been mischaracterized travel and entertainment expenses. Finally, a large group of often over-looked expenses include free goods for demonstration products, intercompany accounts, vendor payments and customer write-offs.
A key distinction of FCPA enforcement by the SEC from other types of accounting fraud is that there is no materiality requirement under the FCPA. Typically, internal audit, external audit or even forensic accounting, only review material transactions. Obviously for a large multi-national company subject to the FCPA, materiality could be millions of dollars or multiplies thereof. However we have seen FCPA enforcement actions with corrupt payments made in the low thousands of dollars.
C. Internal Controls Provisions
The FCPA says that internal controls requires issuers to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that—
(i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary (I) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (II) to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
As further explained in the FCPA Guidance, “the Act defines “reasonable assurances” as “such level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs.” Neither the FCPA nor the FCPA Guidance specifies a particular set of controls that companies are required to implement. However the FCPA Guidance does note, “the internal controls provision gives companies the flexibility to develop and maintain a system of controls that is appropriate to their particular needs and circumstances.”
Moreover, the FCPA Guidance recognizes that “An effective compliance program is a critical component of an issuer’s internal controls.” To do so, a company needs to access its risk and then design and implement a system of internal controls to “account the operational realities and risks attendant to the company’s business.” The FCPA Guidance suggests some of these areas should include “the nature of its products or services; how the products or services get to market; the nature of its work force; the degree of regulation; the extent of its government interaction; and the degree to which it has operations in countries with a high risk of corruption”. But the over-riding key is to assess your company’s FCPA compliance risks and set up a set of internal controls to help manage those risks effectively.
D. Other SEC Enforcement Areas Relating to FCPA Compliance
In addition to the accounting provisions there are other laws and regulations that the SEC enforces and ties into FCPA enforcement. As noted in the FCPA Guidance, “Issuers have reporting obligations under Section 13(a) of the Exchange Act, which requires issuers to file an annual report that contains comprehensive information about the issuer. Failure to properly disclose material information about the issuer’s business, including material revenue, expenses, profits, assets, or liabilities related to bribery of foreign government officials, may give rise to anti-fraud and reporting violations under Sections 10(b) and 13(a) of the Exchange Act.”
There are also several sections under the Sarbanes-Oxley Act (SOX) that have FCPA implications. These include SOX §302 that requires the principle officers of a company “take responsibility for and certify the integrity of these company’s financial reports on a quarterly basis.” Under SOX §404 companies must present annually their conclusion “regarding the effectiveness of the company’s internal controls over accounting.” Finally, SOX §802 prohibits “altering, destroying, mutilating, concealing or falsifying records, documents or tangible objects” with the intent to obstruct or influence a federal investigation, such as the FCPA.
II. Different Enforcement Resolution Tools
While both the SEC and DOJ use Deferred Prosecution Agreements (DPAs) and Non-Prosecution Agreements (NPAs); there are other tools in the SEC arsenal, which the DOJ does not use. These revolve around the fact that in FCPA enforcement, the DOJ handles criminal prosecution and the SEC handles things on the civil side of FCPA enforcement.
A. Cease and Desist Orders
Traditionally the SEC obtains a Cease and Desist order by going to a federal district court. The FCPA Guidance states, “In a civil injunctive action, SEC seeks a court order compelling the defendant to obey the law in the future. Violating such an order can result in civil or criminal contempt proceedings. Civil contempt sanctions, brought by SEC, are remedial rather than punitive in nature and serve one of two purposes: to compensate the party injured as a result of the violation of the injunction or force compliance with the terms of the injunction.”
In most cases the defendant does not contest these Orders and there are no admissions made by the defendant regarding conduct that may have violated the FCPA. While there has been significant criticism of ‘No Admission’ settlements entered into by the SEC, these types of settlements are not expected to change where there is no corresponding criminal action. In a 2013 speech, SEC Chair Mary Jo White announced an expansion of the “admit” policy, and explained that while “neither admit nor deny” settlements would remain the norm, the SEC would now require defendants to admit wrongdoing “in certain cases where heightened accountability or acceptance of responsibility through the defendant’s admission of misconduct may be appropriate”. SEC enforcement chief, Andrew Ceresney, has added that defendants may be required to admit violations in cases of “egregious misconduct,” such as cases involving obstruction of the SEC’s investigation or harm to large numbers of investors.
However the past year or so, the SEC has moved to handle FCPA enforcement actions through an administrative process. As explained in the FCPA Guidance, “SEC has the ability to institute various types of administrative proceedings against a person or an entity that it believes has violated the law. This type of enforcement action is brought by SEC’s Enforcement Division and is litigated before an SEC administrative law judge (ALJ). The ALJ’s decision is subject to appeal directly to the Securities and Exchange Commission itself, and the Commission’s decision is in turn subject to review by a U.S. Court of Appeals.”
In a post on the FCPA Blog, entitled “Are Administrative Proceedings the New Civil Complaints?” Marc Alain Bohn explored this expanded use of administrative law proceedings in SEC enforcement of the FCPA, by noting, “which was facilitated in part by a 2010 Dodd-Frank amendment to the Securities and Exchange Act of 1934 that enables the SEC to collect civil penalties through administrative proceedings.” Moreover, Bohn noted a couple of significant differences in going through a federal district court to obtain a Cease and Desist Order and going through the SEC administrative process. He said, “FCPA cases resolved via administrative proceeding require no judicial approval, as opposed to the settlement of formal civil complaints. This distinction is important because district court judges have complicated several SEC prosecutions in recent years by demanding changes to negotiated settlements or dismissing charges or otherwise limiting claims. In addition, the imposition of a cease-and-desist order under an administrative proceeding requires only that the SEC establish a likelihood that a defendant will violate federal securities law, in contrast with the “reasonable likelihood” required by a court-ordered injunction.” [citations omitted]
The FCPA Professor has been unremitting in his criticism of this administrative settlement process, citing a complete lack of transparency in the process, among other criticisms. Mike Volkov, perhaps more charitably, wrote, “The SEC’s “new” use of administrative proceedings for FCPA cases demonstrates its unwillingness to face judicial scrutiny and undermines the effectiveness of its enforcement program. The SEC likes to play on its home turf and for some reason feels that going to court is not as important.” Whatever your view on the use of the administrative process might be I would only say that it is here to stay so you had better be ready to participate in it if you find yourself in a SEC FCPA enforcement action.
Another criticism of this process is what might be called the home court advantage. In an article in the Wall Street Journal (WSJ), entitled “Firms oppose SEC’s internal enforcement process”, reporter Hazel Bradford quoted Terry Weiss, an attorney with Greenberg Traurig LLP in Atlanta, for the following “I have no problem with fairness when (a case) is brought in a federal District Court and when it is overseen by a federal District Court judge who is appointed by the president of the United States and approved by the U.S. Senate. I have a significant problem when you have (administrative law judges) who are picked by the SEC.” The problem with this argument is that ALJ’s have been a part of the federal enforcement process for a wide variety of agencies, department and issues since the 1930s. To say the SEC is using an approved administrative process that violates the Constitution seems to me to be a stretch.
Another area the SEC has in common with the DOJ in FCPA enforcement is that they both sometimes decline to bring enforcement actions. The FCPA Guidance cites back to the SEC Enforcement Manual for the “guiding principles” in determining whether the Commission will bring a FCPA enforcement action. The factors the SEC will determine, which are the same for enforcement actions against entities or individuals., are listed as follows:
- the seriousness of the conduct and potential violations;
- the resources available to SEC staff to pursue the investigation;
- the sufficiency and strength of the evidence;
- the extent of potential investor harm if an action is not commenced; and
- the age of the conduct underlying the potential violations.
It is important to understand these differences in resolution vehicles and tactics used by the SEC, separate and apart from the DOJ. The civil jurisdiction of FCPA enforcement entails some differences in approach by the SEC. It is important that any Chief Compliance Officer (CCO) or compliance practitioner understand these differences in the event their company goes through a FCPA investigation or enforcement action. We saw three significant FCPA enforcement actions last fall, Smith & Wesson, Layne Christensen and Bio-Rad, where there was no corresponding DOJ, FPCA enforcement action brought jointly with the SEC enforcement action. As anti-corruption compliance programs mature, it may well be that this could portend the future. Just as with The Companion simply because it appears that two are together, they may have their own separate callings.
III. SEC Remedies
Since the SEC focuses on the civil enforcement of the FCPA, it would make sense that its remedies would also be different from a traditional criminal enforcement action. This section will discuss the remedies available to the SEC in its FCPA enforcement efforts.
A. Monetary Fines
The damages that are available to the SEC differ in some significant aspects from those available to the DOJ in its enforcement of the criminal side of the FCPA. According to the FCPA Guidance, “For violations of the anti-bribery provisions, corporations and other business entities are subject to a civil penalty of up to $16,000 per violation. Individuals, including officers, directors, stockholders, and agents of companies, are similarly subject to a civil penalty of up to $16,000 per violation, which may not be paid by their employer or principal. For violations of the accounting provisions, SEC may obtain a civil penalty not to exceed the greater of (a) the gross amount of the pecuniary gain to the defendant as a result of the violations or (b) a specified dollar limitation. The specified dollar limitations are based on the egregiousness of the violation, ranging from $7,500 to $150,000 for an individual and $75,000 to $725,000 for a company.”
As straightforward as these monetary amounts may seem, the totals can become very large very quickly. As noted by Russ Ryan in a guest post on the FCPA Professor’s blog, entitled “Former SEC Enforcement Official Throws The Red Challenge Flag”, the SEC significantly multiplied those amounts in a default judgment context against former Siemens executives by claiming that “four alleged bribes should be triple-counted as three separate securities law violations – once as a bribe, again as a books-and-records violation, and yet again as an internal-controls violation – thus artificially multiplying four violations to create twelve.” Further, under the specific books-and-records and internal-controls allegations “the SEC was super aggressive, taking the position that these classically non-fraud violations involved “reckless disregard” of a regulatory requirement, thus allowing the SEC to demand the maximum $60,000 per violation in “second-tier” penalties rather than the $6,000 per violation in the “first-tier” penalties ordinarily associated with non-fraud violations.”
B. Profit Disgorgement
In addition to the above statutory fines and penalties, “SEC can obtain the equitable relief of disgorgement of ill-gotten gains and pre-judgment interest and can also obtain civil money penalties pursuant to Sections 21(d)(3) and 32(c) of the Exchange Act. SEC may also seek ancillary relief (such as an accounting from a defendant). Pursuant to Section 21(d)(5), SEC also may seek, and any federal court may grant, any other equitable relief that may be appropriate or necessary for the benefit of investors, such as enhanced remedial measures or the retention of an independent compliance consultant or monitor.” These remedies can be sought in a federal district court of through the SEC administrative process.
As explained by Marc Alain Bohn, in a blog post on the FCPA Blog entitled “What Exactly is Disgorgement?” profit “Disgorgement is an equitable remedy authorized by the Securities Exchange Act of 1934 that is used to deprive wrong-doers of their ill-gotten gains and deter violations of federal securities law. The Act gives the SEC the authority to enter an order “requiring accounting and disgorgement,” including reasonable interest, as part of administrative or cease and desist proceedings”. In another article Bohn co-authored with Sasha Kalb, entitled “Disgorgement – the Devil You Don’t Know” published in Corporate Compliance Insights (CCI), they set out how such damages are calculated. They said, “In calculating disgorgement, the SEC is required to distinguish between legally and illegally obtained profits. The first step in such calculations is to identify the causal link between the unlawful activity and the profit to be disgorged. Once this causal link is established, the SEC may assert its right to disgorge illicit profits that stem from this wrong-doing. Because calculations like these often prove difficult, courts tend to give the SEC considerable discretion in determining what constitutes an ill-gotten gain by requiring only a reasonable approximation of the profits which are causally connected to the violation.”
However if you read the FCPA quite closely you will not find any language regarding profit disgorgement as a remedy. Nevertheless a simple reading of the statute does not limit our inquiry as to this remedy. In a Note, published in the University of Michigan Journal of International Law, entitled “The Foreign Corrupt Practices Act, SEC Disgorgement of Profits and the Evolving International Bribery Regime: Weighing Proportionality, Retribution and Deterrence”, author David C. Weiss explained the development of the remedy of profit disgorgement. As noted by Bohn, profit disgorgement was always available to the SEC from the very beginning of its existence, through the enabling legislation of 1934. But as explained by Weiss, in the completely unrelated legislation entitled The Penny Stock Reform Act of 1990, profit disgorgement was “authorized by statute [as a remedy to the SEC] without a limitation to the FCPA.”
Finally, and what many compliance practitioners do not focus on for SEC enforcement of the FCPA, was the enactment of Sarbanes-Oxley Act of 2002 (SOX). Weiss said, “The most recent change to the way in which the SEC enforces the FCPA—and a critical development to consider—is SOX, which affects virtually all of the SEC’s prosecutions, including those under the FCPA. When assessing penalties, the SEC draws on SOX to provide great latitude in determining the types of penalties it enforces. While SOX did not amend the FCPA itself, it did amend both civil and criminal securities laws relating to compliance, internal controls, and penalties for violations of the Exchange Act. Since the enactment of SOX, the SEC has possessed the power to designate how a particular penalty that it assesses will be classified.” [citations omitted]
There has been criticism of the SEC using profit disgorgement as a remedy. As far back as 2010, the FCPA Professor criticized this development in his article “The Façade of FCPA Enforcement” where he found fault with the remedy of profit disgorgement for books and records violations or internal controls violations only, where there is no corresponding “enforcement action charging violations of the anti-bribery provisions.” He wrote “It is difficult to see how a disgorgement remedy premised solely on an FCPA books and records and internal controls case is not punitive. It is further difficult to see how the mis-recording of a payment (a payment that the SEC does not allege violated the FCPA’s anti-bribery provisions) can properly give rise to a disgorgement remedy.”
Bohn and Kalb said, “Over the last six years, disgorgement has served to significantly increase the financial loss that companies are exposed to in FCPA enforcement matters. In addition to the considerable civil penalties often imposed by the SEC as part of FCPA settlements, the SEC has made clear that it will not hesitate to seek recovery of large sums through disgorgement provided they are reasonably related to the alleged misconduct. Yet the methodology used by the SEC to support the amounts it seeks to disgorge has not been much discussed. In the absence of adequate guidance as to how these sums are calculated, disgorgement poses an even greater risk in the current aggressive FCPA enforcement climate.” I would only add to their conclusion that profit disgorgement is here to stay.
IV. SEC Communications to the Compliance Practitioner
Fortunately for the compliance community, one of the significant ways that the SEC communicates with compliance practitioners is through public speeches. We were recently treated to another such example when Andrew Ceresney, the SEC Director, Division of Enforcement, spoke at CBI’s Pharmaceutical Compliance Congress in Washington DC. Ceresney provided some clear guidelines for the compliance practitioner about what the SEC expects from companies in the area of FCPA compliance. More specifically he talked about some specific bribery schemes the SEC has seen in FCPA enforcement actions involving the pharmaceutical industry. These examples provided scenarios that any compliance practitioner in the pharmaceutical space can investigate for their organization.
A. Pharmaceutical Industry Bribery Schemes
Ceresney discussed ‘Pay-to-Prescribe’ bribery schemes where physicians and hospitals are paid bribes in “exchange for prescribing certain medication, or other products such as medical devices.” These schemes can involve payments of cash or other forms of non-cash benefits such as gifts, travel and entertainment. He described an example where a company “invited “high-prescribing doctors” in the Chinese government to club-like meetings that included extensive recreational and entertainment activities to reward doctors’ past product sales or prescriptions.” Another such scheme involved a running total of points for doctors who prescribed a company’s products, which could later be cashed in for items of value. Another involved a rebate of part of a hospitals overall purchase to certain doctors or hospital administrators.
Another form of bribery was seen where a company would direct charitable donations to the decision-makers “pet” charity. In a couple of FCPA enforcement actions, the charity had nothing to do with the pharmaceutical industry but in one case there was “a purported donation of nearly $200,000 to a public university to fund a laboratory that was the pet project of a public hospital doctor. In return, the doctor agreed to provide business to” the company in question. The point of all of these examples is that “that bribes come in many shapes and sizes, and those made under the guise of charitable giving are of particular risk in the pharmaceutical industry. So it is critical that we carefully scrutinize a wide range of unfair benefits to foreign officials when assessing compliance with the FCPA – whether it is cash, gifts, travel, entertainment, or charitable contributions.”
B. Compliance Programs
I certainly agree with Ceresney, only adding that I do not think you can say it too loud or too often, when he stated, “The best way for a company to avoid some of the violations that I have just described is a robust FCPA compliance program.” It all begins with a risk assessment so that you will understand what your company’s risks are and you can manage them accordingly through your compliance program. From there Ceresney said, “The best companies have adopted strong FCPA compliance programs that include compliance personnel, extensive policies and procedures, training, vendor reviews, due diligence on third-party agents, expense controls, escalation of red flags, and internal audits to review compliance.” He also specifically mentioned third parties, as they are still perceived to be the highest risk in any FCPA risk matrix. He stated, “To properly combat against these abuses, a compliance program must thoroughly vet its third-party agents to include an understanding of the business rationale for contracting with the agent. Appropriate expense controls must also be in place to ensure that payments to third-parties are legitimate business expenses and not being used to funnel bribes to foreign officials.”
C. Self-Reporting and Cooperation
Next Ceresney turned to self-reporting and cooperation. After initially noting that the current enforcement environment is greatly aided by self-reporting, he went on to explain why it is in a company’s interest to do so. Beyond the simple credit a company receives for self-reporting, by doing so “parties are positioned to also help themselves by aggressively policing their own conduct”. The SEC will also “continue to find ways to enhance our cooperation program to encourage issuers, regulated entities, and individuals to promptly report suspected misconduct. The Division has a wide spectrum of tools to facilitate and reward meaningful cooperation, from reduced charges and penalties, to non-prosecution or deferred prosecution agreements in instances of outstanding cooperation.” He ended this section of his remarks with a couple of thoughts that I believe succinctly provided the SEC’s position on self-reporting and cooperation. First he said “When I was a defense lawyer, I would explain to clients that by the time you become aware of the misconduct, there are only two things that you can do to improve your plight – remediate the misconduct and cooperate in the investigation.” He then ended with the following, “Companies that choose not to self-report are thus taking a huge gamble because if we learn of the misconduct through other means, including through a whistleblower, the result will be far worse. “
D. Internal Controls
Ceresney had some interesting remarks around internal controls. He said they were in the “context of financial reporting”; however I found that they might well have significant implications for the compliance practitioner. I thought his money line was “Internal control problems have been prominently featured in recent enforcement cases we have brought in the financial reporting area, even in cases without accompanying charges of fraud. This reflects our view that adequate internal controls are the building blocks for accurate financial reporting and can prevent fraudulent activity.” While the specified area of these remarks was around SOX §§302 and 404, I think this portends directly to internal controls under the FCPA.
He went on to state, “my key takeaway is that senior leadership of companies should place strong emphasis on the importance of designing and implementing strong internal controls. Senior officers need to ask questions about what they are being told about their internal controls – but perhaps more importantly, ask questions about the things that are not being reported to them. Dropping those occasional inquiries into conversations where they won’t be expected sends a powerful message that you want these issues to be on your employees’ minds. And what is needed is not just involvement from senior leadership but also from the audit committee. Instead of a check-the-box mentality, it is important to use careful thought at the outset to how controls should be designed in light of a firm’s business operations. This entails an up-front assessment of financial reporting risks, designing controls that address those risks, and ensuring that the resulting controls are well documented and communicated. And, as the company’s business evolves and changes, management must consider whether the existing internal controls are appropriate, or need to be enhanced or changed. Appropriate resources and attention also need to be devoted to monitoring those controls for effectiveness and making changes as needed.” Every time you see the words ‘financial’ simply substitute compliance and I think you will see where the SEC is headed in its internal controls enforcement of the FCPA.
You really do not have to read the tea leaves when you have such a clear message as was delivered by Ceresney at the CBI conference. Moreover, with all the sites that reported on it, talked about it and even linked to the printed text, you did not have to pay to attend. It is all there for you to read and to read for free.
V. Final Thoughts on Where is SEC Enforcement Headed
I conclude my exploration SEC’s enforcement of the FCPA by reviewing some of the new things I have learned and where all of this maybe headed.
A. Internal Controls
There was a trend, beginning in the fall of 2014 of SEC FCPA enforcement actions, where the DOJ either declined to prosecute the company or settled with the company via a NPA. This led me to conclude that the SEC was ramping up its review and enforcement of the accounting provisions under the FCPA separate and apart from criminal side enforcement of the FCPA by the DOJ. As noted above when Andrew Ceresney, the SEC Director, Division of Enforcement, spoke at CBI’s Pharmaceutical Compliance Congress, he discussed the importance of internal controls in SEC enforcement. While his remarks were primarily directed “in the context of financial reporting” I believe they could be equally applicable in the FCPA compliance context.
Ceresney said, “What kinds of practice pointers for how to avoid these issues? Well, in cases we have brought, we see controls that were not carefully designed to match the business, or that were not updated as the business changed and grew. And we see that senior leadership was not asking the tough questions – and sometimes not even asking the easy questions. Senior management in some cases was just not engaged in any real discussion about the controls. As a result, employees did not properly focus on them and the firm and its shareholders are put at risk.” I think these statements, particularly taken in the context of his overall remarks, portend a greater focus on internal controls review and enforcement in the FCPA context.
Finally, in the area of internal controls, is the interplay of SOX with FCPA enforcement and several sections of the Act that have FCPA implications. These include SOX §302 that requires the principle officers of a company to “take responsibility for and certify the integrity of these company’s financial reports on a quarterly basis.” Under SOX §404 companies must present annually their conclusion “regarding the effectiveness of the company’s internal controls over accounting.” Finally, SOX §802 prohibits “altering, destroying, mutilating, concealing or falsifying records, documents or tangible objects” with the intent to obstruct or influence a federal investigation, such as the FCPA.
Every public company is required to report on its internal controls. The SEC may well start mining those required, annual public disclosures for information on compliance internal controls. If the SEC finds a company’s report lacking and then after requesting further information, still finds a company’s response lacking, a company may be looking at strict liability and a financial penalty based on profit disgorgement as I lay out next.
B. Strict Liability
After having read, re-read and reviewed the FCPA and commentary, I now believe that a strict liability interpretation for enforcement of the FCPA is fully supported by the plain language of the Act itself. I come to this conclusion because there is no language in the text of the Act that ties the accounting provision requirements to any other operative violation of the statute. In other words, there is no language that says that an accounting provisions violation must be tied to an offer or payment of a bribe to obtain or retain business. While the FCPA does not specifically say that a company will be strictly liable for a violation of the accounting provisions, it is certainly not prohibited. Since violations of the accounting provisions as enforced by the SEC are civil violations only, I now believe that such a position is not prohibited by the Act.
C. Profit Disgorgement
Similar to my views on strict liability for accounting violations, I have also come to believe that profit disgorgement is a remedy fully supported and available to the SEC in FCPA enforcement actions. This change was made by an un-related law, The Penny Stock Reform Act of 1990, which amended the Securities Exchange Act of 1934 to: allow the SEC to (1) impose tiered civil money penalties pursuant to administrative findings of violations of the Act; (2) enter an order requiring an accounting and disgorgement; (3) issue cease and desist orders; and (4) issue temporary restraining orders. Profit disgorgement has generally been considered an equitable remedy. Sasah Kalb and Marc Alain Bohn, in their article “Disgorgement: The Devil You Don’t Know”, wrote “As an equitable remedy, disgorgement is not intended as tool to punish, but as a vehicle for preventing unjust enrichment. The SEC is therefore only permitted to recover the approximate amount earned from the alleged illicit activities. Disgorging anything more would be considered punitive.”
In conjunction with this equitable nature for profit disgorgement, is the concept of proportionality. In the article by David C. Weiss, he wrote that regarding proportionality “punishment schemes fail a utilitarian test when the punishment exceeds, or threatens to exceed, the offense. Put another way, deterrence requires that a punishment be proportionate to the harm—allowing for some multiplier based on the likelihood of being caught. Punishments that are not proportionate are not justified under this utilitarian theory.”
D. Profit Disgorgement as a Remedy for Strict Liability
What does it all mean and where is SEC enforcement of the FCPA headed? I think it will be a combination of the enforcement of the accounting provisions of the FCPA through a strict liability reading of them by the SEC to the remedy of profit disgorgement. Admittedly this opinion seems contrary to the equitable nature of the remedy of profit disgorgement. However the greater focus of SEC scrutiny and enforcement of the accounting provisions point me in that direction. While it is also true that profit disgorgement has traditionally required some specific ill-gotten gains; with the statutory authority provided by the Penny Stock Act to the SEC allows for disgorgement with no language around its equitable beginning, this may be enough for the SEC to make such an intellectual leap. Further, as noted by Kalb and Bohn, “Because calculations like these often prove difficult, courts tend to give the SEC considerable discretion in determining what constitutes an ill-gotten gain by requiring only a reasonable approximation of the profits which are causally connected to the violation.”
The final component is the lack of judicial review in FCPA enforcement actions. Every practitioner is aware of the absolute dearth of cases in this area. With the SEC moving towards more administrative actions, through the 2010 Dodd-Frank amendment that enables the SEC to collect civil penalties through administrative proceedings, there may not be many federal district court reviews going forward. Of course to have a federal district court review of a remedy, it generally takes the defendant to make some objection and companies seemingly do not wish to take on the SEC in any FCPA enforcement matter (or the DOJ for that matter). But even if there was a federal district review of a Cease and Desist Order filed before it, you almost never hear the court reject an agreed Order on the grounds that the remedy was too harsh or unwarranted.
The SEC is often not viewed as the lead enforcer of the FCPA. However I hope you will now understand the significant risk your company may run by not paying attention to not only the plain language of the statute by also the clear messages the SEC is sending about its enforcement goals.