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What’s The Count?

Some weekend. We should’ve expected it since the calendar says mid-October. That always means one thing, or maybe two. The sky is falling on Wall Street . . . and the American League Championship Series is in full swing, literally. In Game 2, seven home runs in five innings. Five hours and 27 minutes of pure tension. Great baseball, even if outside the park the Anglo-American capitalist model was taking strike three (at least according to some voices from the Eurozone).

But coming back to our subject of the Foreign Corrupt Practices Act, a reader last week with an eye for detail asked the following:

I have a question about how DOJ and SEC provide numbers of prosecutions /enforcement actions for a particular year. First, when they say 2008, is it fiscal year (e.g., Oct. 2007-Oct. 2008) or calendar year? Second, do you know what they count as an action? I assume it is any indictment, plea agreement, DPA/NPA/or (in the case of the SEC) settlement or enforcement action filed, but not sentencing?

We can’t answer for the SEC, but the Justice Department counts actions on a calendar-year basis. The description in the question of what’s included is correct. Any indictment, plea agreement, deferred prosecution agreement or non-prosecution agreement gets a number. To avoid double counting, sentencings do not get numbers because the actions are included from the time of charging or entry of the guilty plea.

If anyone would like to add more to this answer or speak for the SEC, please drop us a line.


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  1. Still doesn’t really answer varying scenarios:

    (1) If the DOJ indicts someone who six months later enters a plea agreement, is that two enforcement actions?

    (2) What if the DOJ indicts someone one year and that person enters a plea agreement a year later? Does that count as an enforcement action each year?

    (3) What if the DOJ charges a subsidiary and enters a DPA or NPA with the parent (ala Baker Hughes last year), does that count as two enforcement actions?

  2. Yup, there are some unanswered questions. We’ll post any further responses to clear up the mysteries.

  3. Not sure how they count it internally, but thus far I’ve got about 6 different incidents from Jan 1, 2008 from the SEC’s lit releases. This is not counting the IXTC case that wrapped up this year after it had dragged on seemingly forever.

  4. Should also add I’m counting 4-5 for the DOJ since Jan 1 depending how you want to count it.

  5. Not sure how you figure Miguel. If you include settlements, pleas and unresolved indictments, on the DOJ side you appear to have 15 enforcement actions so far this year. If you don’t include indictments, you have 8. 6 Corporate Settlements• Willbros Group (May)• AGA Medical Corp.(May)• AB Volvo (Mar.)• Flowserve Corp. (Feb.)• Faro Technologies (Jun.)• WABTEC (Feb.)2 Individual Pleas• Jack Stanley (Sep.)• Martin Self (May7 Indictments• Gerald Green (Superceding) (Oct.); (Initial) (Jan.)• Patricia Green (Superceding) (Oct.); (Initial) (Jan.)• Shu Quan Sheng (Physicist) (Sep.)• Nam Nguyen (Nexus Tech) (Sep.)• Kim Nguyen (Nexus Tech) (Sep.)• An Nguyen (Nexus Tech) (Sep.)• Joseph Lukas (Nexus Tech) (Sep.)On the SEC side, you appear to have 13 enforcement actions. 6 Corporate Settlements?Orders• Con-Way Inc.(August)• Faro Technologies (Jun.)• Willbros Group (May)• AB Volvo (Mar.)• Flowserve Corp. (Feb.)• WABTEC (Feb.)7 Individual Settlements/Orders• Jack Stanley (Sep.)• Jason Steph (May)• Gerald Jansen (May)• Lloyd Biggers (May)• Steven J. Ott (April)• Roger M. Young (April)• Yaw Osei Amoako (April)

  6. Anonymous said…

    At a recent conference (SIFMA FCPA Seminar), Steve Tyrrell (Chief of Fraud Section at DOJ) said there had been 10 DOJ enforcement actions so far “in 2008” and Frederic Firestone (Associate Director, SEC Enforcement Division) said there had been 19 SEC actions so far this year. Not sure how these numbers were derived…

    October 15, 2008 3:35 AM

  7. The DOJ numbers make sense if this recent conference was after September 6th and before September 22nd (when the Nexus employees were indicted, followed by Shu on the 24th).

    The SEC numbers also make sense when you consider that the SEC counts enforcement actions on a fiscal year ending Sept. 30. In addition to this year’s 13 SEC actions (through September 30), there were 6 actions from October to December last year (York, Ingersoll Rand, Chevron, Lucent, Akzo Nobel, and Robert Phillip).

    I still am unclear, however, on how actions should be counted under the circumstances in the first comment (I’m anonymous above).

  8. The SEC released the following announcement today (Oct 22, 2008):

    “Another growth area is cases against U.S. public companies that use corporate funds to bribe foreign officials, an activity precluded by the Foreign Corrupt Practices Act (FCPA). In fiscal year 2008, the SEC filed 15 FCPA cases. Since January 2006, the SEC has brought 38 FCPA enforcement actions – more than were brought in all prior years combined since FCPA became law in 1977.”

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