ABA Panel Focuses on Trends in SEC Enforcement of the FCPA and Strategies for Negotiating Civil FCPA Settlements

The SEC’s focus on the FCPA has remained sharp, and recent changes to its policies and new enforcement tools require defense lawyers to rethink their strategies for dealing with the agency.  On October 18, 2012, a group of distinguished attorneys discussed these issues at the ABA’s Fifth Annual National Institute on the FCPA in Washington, D.C.  The panel was moderated by Cheryl Scarboro, now a partner at Simpson Thacher & Bartlett LLP after a 19-year tenure at the SEC, most recently as the first Chief of the FCPA Unit in the Division of Enforcement.  The participants discussed the latest changes to the SEC’s “neither admit nor deny” policy; the viability of tack-on civil litigation; return of disgorged profits to victims or victim countries; negotiation of the disgorgement figure with the SEC; and the SEC’s use of non-prosecution agreements and deferred prosecution agreements.  This article provides highlights from the panel discussion, with particular emphasis on strategies useful to companies and counsel in responding to the SEC during investigations and in negotiating with the agency in settlement proceedings.

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