Southern Illinois University Law Professor Mike Koehler was at an American Bar Association event in Washington, D.C. earlier this month.
On the dais were the nation’s top two Foreign Corrupt Practices Act (FCPA) prosecutors — Kara Brockmeyer from the Securities and Exchange Commission (SEC) and Patrick Stokes from the Department of Justice.
“The Department of Justice and SEC frequently talk about individual FCPA enforcement actions and indeed recognize the importance of individual enforcement in maximizing deterrence,” Koehler said. “But the reality is that since 2008 approximately 80 percent of corporate FCPA enforcement actions lack any related enforcement action against company employees. Indeed, the SEC has not brought an individual FCPA enforcement action in nearly two and a half years. Is one possible explanation for these statistics – that corporate FCPA enforcement actions do not necessarily represent provable FCPA violations?”
According to Koehler, Brockmeyer and Stokes “strongly disagreed with my statistics and called them false, wrong and deeply flawed.”
Koehler didn’t take kindly to this rebuke.
And so he has issued a challenge to both the Department of Justice and SEC — refute my statistics.
“The SEC has not brought an individual FCPA enforcement action in approximately 2.5 years,” Koehler says. “As clearly evidenced from the SEC’s FCPA website, the last individual FCPA action was in April 2012 against Garth Peterson.”
“Since 2008, the SEC has brought 68 corporate FCPA enforcement actions. Only 12 of these actions have resulted in a related enforcement action against a company employee. Thus, 82% of corporate SEC FCPA enforcement actions since 2008 have not resulted in any related enforcement action against a company employee.”
As for the Department of Justice, it has brought 63 corporate FCPA enforcement actions — only 16 of these actions have resulted in a related enforcement action against a company employee.
“Thus, 75% of corporate FCPA enforcement actions since 2008 have not resulted in any related enforcement action against a company employee.”