Four Ways the SEC Enforcement Landscape Is Changing and Why They Matter to FCPA Practitioners

The judiciary and others have recently attacked the SEC’s longstanding “neither admit nor deny” policy, which allows defendants to settle without admitting any of the allegations leveled against them, and new SEC Chairwoman Mary Jo White has announced plans to end that policy in selected egregious cases.  How much will this change affect companies?  In the $13 billion settlement reached between JP Morgan and the SEC on November 19, 2013 over the sale of mortgage-backed securities, for example, the government recited agreed-upon facts, but some have called that weak tea, characterizing the facts as vague, and saying companies should have to make it clear why they are paying a fine.  Others say forcing defendants to admit allegations will squeeze the SEC’s resources, limiting it to bringing fewer enforcement actions as companies refuse to settle and go to trial.  The admissions policy change comes alongside a few other notable trends, including the increased use of administrative enforcement actions, a greater focus on cooperation tools and a greater judicial scrutiny of settlement agreements – for the “neither admit nor deny” provision and other settlement provisions, such as the fine and the reporting requirements.  During a recent webinar hosted by the Berkeley Research Group, Paul Hastings LLP and The FCPA Report, H. David Kotz, Managing Director at BRG, and Thomas Zaccaro, partner at Paul Hastings, discussed the development of these four trends and the implications for companies and individuals.  Rebecca Hughes Parker, Editor-in-Chief of The FCPA Report, moderated the event.

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