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Editors

Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

Bill Steinman
Contributing Editor

Supreme Court limits SEC disgorgement power

The U.S. Supreme Court Monday ruled 9-0 to limit the Securities and Exchange Commission’s legal authority to recover ill-gotten profits from defendants.

The Supreme Court in Kokesh v. SEC said the SEC’s use of the remedy known as disgorgement is subject to a five-year statute of limitations.… Continue Reading

The 2016 FCPA Enforcement Index

Last year 27 companies paid about $2.48 billion to resolve FCPA cases. It was the biggest enforcement year in FCPA history. Both the number of enforcement actions and the overall amounts paid to resolve them were records.… Continue Reading

Rebecca Gantt: Looking for clues about the future of the Pilot Program

Last April, the DOJ’s Criminal Division launched the one-year Pilot Program. The remaining four months of the Pilot Program promise to provide valuable information on several fronts.

Building on the Yates Memo, the Pilot Program provides structured incentives for companies to self-disclose, cooperate, and remediate FCPA violations. 

So far, the DOJ has issued five declination letters under the Pilot Program.  

Three were in June 2016, and two in September 2016.  All five involved conduct in China. 

In all five, the DOJ pointed to six common factors for its reasons to decline prosecution:

1) timely self-disclosure

2) thorough investigation

3) fulsome cooperation (including identifying responsible individuals)

4) a promise to cooperate in the future regarding individual investigations

5) remediation (including termination of employees in all five declinations), and

6) full disgorgement. 

All but one also pointed to the establishment of an enhanced compliance program. 

And only one mentioned a civil penalty in addition to a disgorgement. 

One declination also cited as a factor that the company’s internal audit program had discovered the reported conduct.… Continue Reading

Daniel Patrick Wendt: Are those DOJ disgorgements really disgorgement?

This year the DOJ required disgorgement of ill-gotten gains as a predicate for preferential treatment under the new FCPA enforcement Pilot Program, regardless of whether the participating company was publicly or privately owned. 

For FCPA enforcement, disgorgement has historically been a remedy used by the SEC against publicly-owned companies, but it is available to both the SEC and DOJ.… Continue Reading

JPMorgan lands on the FCPA Top Ten Disgorgement List

Last week’s $264 million enforcement action against JPMorgan Chase included disgorgement to the SEC of $130.5 million — the seventh biggest FCPA disgorgement of all time.

The SEC said $105.5 million was disgorgement and $25 million was pre-judgment interest.… Continue Reading