Kevin LaCroix, left, who writes the D&O Diary, had a fascinating post last week about follow-on civil litigation brought by investors against companies that have been the target of an FCPA enforcement action.
He cited a November 1, 2010 Reuters story reporting that “since the beginning of 2010 alone, plaintiffs’ lawyers have filed 24 shareholder suits against companies that have disclosed FCPA investigations. . . .[T]hough some cases have been dismissed, plaintiffs generally have been successful in these cases. Of the 37 cases in the preceding four years, 26 resulted in settlements.”
Imagine that. Plaintiffs are prevailing in 70% of their FCPA-related cases even though there’s no private right of action under the FCPA. Private litigants seeking relief have to resort to other claims — such as violations of Sections 10(b) and 20 of the Securities Act, common law fraud, aiding and abetting common law fraud, and negligent misrepresentation.
For the record: We’re not in favor of any type of private litigation under the FCPA until the courts or Congress fix respondeat superior.
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Ask not what your country can do for you . . . . We were always a fan of Theodore Sorensen, a lawyer best known as President Kennedy’s speech writer.
Sorensen died on October 31. Mike Koehler, left, marked his passing with a post on the FCPA Professor that began this way:
Buried deep in the thousands of pages of FCPA legislative history, one will find a July 1976 article Sorensen, a lawyer who spent a substantial portion of his career with Paul Weiss, authored for Foreign Affairs titled “Improper Payments Abroad: Perspective and Proposals” (abstract available here).
Thanks, Prof Koehler, for teaching us something new about Ted Sorensen and FCPA history.
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A better mousetrap. Legal news aggregator lawgents.com, which we talked about last week, now lists more than 90 feeds, making it the internet’s largest law-related news and blog aggregator. “Legal news, fast” is the site’s motto, and that’s right. We’re completely hooked. Readers can access us and all our neighbors there.
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The SEC’s expansive enforcement. A post on Friday by Ashby Jones on the WSJ’s lawblog about Panalpina’s settlement noted that the company isn’t an “issuer.” It was charged by the SEC as “an agent and with aiding and abetting violations by its customers who are U.S. issuers.” No doubt lots of ink and pixels will be spilled in coming days and months to explore that one.
Our question: If the DOJ and SEC are packaging settlements jointly, can a defendant challenge SEC jurisdiction and still settle with the DOJ? Or does fighting against one destroy settlement hopes with the other?
Finally, our thanks to Joe Palazzolo at the WSJ’s corruption currents for referring to this space as “a resource for anyone with an interest in U.S. anti-corruption efforts.” His post was about our latest top ten list.