The SEC and the FCPA

The Foreign Corrupt Practices Act remains an SEC priority, as touted in the Commission's 2009 Performance and Accountability Report, available at http://www.sec.gov/about/secpar2009.shtml.  The Report's 'Year in Review' section describes the December 2008 Siemen's case (p.130), wherein the German company agreed to pay $350 million in disgorgement (while simultaneously settling actions brought by the U.S. Department of Justice and the Office of the Prosecutor General in Munich) in settlement of SEC charges alleging violative conduct around the globe.  The PAR Report cites misconduct by former senior management, as well as the conglomerate's "inadequate internal controls."  

The case holds a wealth of insights on international law.  While jurisdictionally premised  -at least in part - upon Siemen's listing of ADRs on the New York Stock Exchange, the case was made possible by a general Memorandum of Understanding in effect and signed by both Germany and the U.S.  Further, observers will note that the FCPA action was brought in the presence of Germany's own, longstanding anti-bribery statute.

The Siemen's case marked the largest settlement in the history of the 33-year old FCPA.  Looking forward, the PAR Report more generally cites the SEC's continued desire to "vigorously enforce" the anti-bribery provision of the FCPA.

For a summary of all FCPA highlights last year, see a dedicated FCPA blog at http://fcpaprofessor.blogspot.com/2010/01/look-back-at-2009.html .

--JSC, 1/19/10