Wednesday, October 14, 2009


The SEC recently posted on its website (see here) a draft "Strategic Plan for Fiscal Years 2010-2015" setting forth the Commission's "mission, vision, values, and strategic goals" for the future.

Part of strategic goal 1 - to "foster and enforce compliance with the federal securities laws" - is a commitment to expand its "coordination efforts with foreign authorities, including [...] close cooperation with foreign authorities in investigations relating to [...] the Foreign Corrupt Practices Act." (see pg. 16).

While not FCPA specific, a performance metric the SEC intends to use to gauge its progress of "fostering and enforcing compliance with the federal securities laws" is the percentage of enforcement cases successfully resolved (see pg. 17). The SEC notes that "[i]n general, the SEC strives to successfully resolve as many cases as possible, but, at the same time, aims to file large, difficult, or precedent-setting cases when appropriate, even if success is not assured."

Setting FCPA precedent through the filing of a complaint, even if success is not assured, that is then subject to valid legal defenses based on the statute in a transparent, adversarial proceeding?

Wow, that's a novel concept and in contrast to the current situation where FCPA "precedent" is set (or at least viewed as being set with the SEC's encouragement) by the SEC alone through its enforcement program wherein the SEC is both a party and an adjudicator.


I previously posted about the "War of Words in Ecuador" (see here)- a post about Chevron's mammoth legal battle in Ecuador involving allegations of environmental contamination and how the long, messy battle now includes an FCPA component.

The posted ended by saying "this long, messy legal battle is getting more murky by the day."

As detailed in a recent story in the New York Times (see here) "in recent days the plot has thickened further."

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