Abstract
The enforcement of the OECD Anti-bribery Convention is not only characterized by many signatories’ “ineffective enforcement” but also by a few signatories’ “zealous enforcement.” Given that the standard rational-choice account cannot fully explain the developmental reality in leading jurisdictions, this chapter takes the US as an example and explores how variation in the institutional context in the US in past decades explains variation in the US’ efforts on transnational bribery regulation.
The starting point of this study is an awareness that the enforcement of the FCPA by the US does not result from any constructed “behavior” of a “state actor” but is embodied in multiple domestic agencies’ independent performance of their statutory duties. Then this study reviews the developmental trend of the enforcement efforts of two major enforcing agencies (i.e., the SEC and the DOJ) and finds that changes in their enforcing efforts result from their unchanging adherence to their own predefined missions in an evolving institutional context. Their enforcing efforts are a function of the extent to which their duties of enforcing the FCPA have been gradually incorporated into their central missions over time. The US’ experience has at least two inspirations for understanding the global trend of transnational bribery regulation: first, transnational bribery regulation results from the independent performance of duties of domestic enforcing agencies in an evolving context but not rational choices of an anthropomorphized “state actor” at specific moments. Second, the US’ increasingly aggressive enforcement of the FCPA can create a positive regulatory competition between the US and other signatories which makes other signatories to have no choice but to regulate transnational bribery more faithfully so as to prevent their companies from enforcement actions under the FCPA.
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Notes
- 1.
As Pieth comments, “scholars have taken the enactment of the FCPA more or less for granted; few discuss the reasons for such an unusual step in the 1970s … there must have been strong domestic reasons for the U.S. legislator to take this step unilaterally, reasons going beyond the general sympathy of the Carter administration for business ethics. Case law and legislative materials suggest that the U.S. legislator believed it was acting to protect the free market system against the erosion of public confidence” (Pieth 2007: 7–8).
- 2.
See SEC Press Release, “SEC Enforcement Actions: FCPA Cases,” available at: http://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml (last visited: 29 July 2014).
- 3.
During the period from 2001 to 2006, the number of FCPA actions brought by the SEC increased steadily, though remaining in the single digits, and since 2007, the number ramps up to double digits. See SEC Press Release, “SEC Enforcement Actions: FCPA Cases,” available at: http://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml (last visited: 29 July 2014).
- 4.
Several examples of laws issued in this context are the Securities Act of 1933, the Securities Act of 1934, and the Investment Company Act of 1940, which require companies to disclose their investment policies and their financial conditions to public investors.
- 5.
SEC Press Release, “The Investor’s Advocate: How the SEC Protects Investors, Maintain Market Integrity, and Facilitates Capital Formation,” available at: https://www.sec.gov/about/whatwedo.shtml#.U2YBm_mSz6Q (last visited: 4 May 2014).
- 6.
As § 4 (a) of this act provides, “There is hereby established a Securities and Exchange Commission … to be composed of five commissioners to be appointed by the President by and with the advice and consent of the Senate. Not more than three of such commissioners shall be members of the same political party, and in making appointments members of different political parties shall be appointed alternatively as nearly as may be practicable.” § 4 (a), Securities Exchange Act of 1934. Also see the SEC Press Release, “The Investor’s Advocate: How the SEC Protects Investors, Maintain Market Integrity, and Facilitates Capital Formation,” available at: https://www.sec.gov/about/whatwedo.shtml#.U2YBm_mSz6Q (last visited: 4 May 2014).
- 7.
SEC Press Release, “The Investor’s Advocate: How the SEC Protects Investors, Maintain Market Integrity, and Facilitates Capital Formation,” available at: https://www.sec.gov/about/whatwedo.shtml#.U2YBm_mSz6Q (last visited: 4 May 2014).
- 8.
As Charles L. Marinaccio, a Minority Counsel of the Senate Committee on Banking, Housing and Urban Affairs suggested, “In any reexamination of the FCPA , some things will not change: the United States will never adopt a policy that it is acceptable to corrupt foreign governments; the United States will never permit bribery to corrupt a free market; the United States will always require corporations to behave as responsible citizens; the United States will always seek to preserve the integrity of its capital markets. If the law changes, it will have to continue to meet the public policy objectives I have outlined” (Marinaccio 1982: 348).
- 9.
Report of the Committee on Banking, Housing, and Urban Affairs United States Senate to Accompany S. 305, together with Additional Views, 12, 95th Congress, first session, on S. 305, 95th Congress, 1st Session, Report No. 95-114, 28 March 1977.
- 10.
See S. Report 97-209, Part 1, 23 November 1981, available at: http://beta.congress.gov/bill/97th-congress/senate-bill/708 (last visited: 7 May 2014).
- 11.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy and the Subcommittee on Securities of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, 1st Session, 24 February 1983, pp. 48–49.
- 12.
See S. Report 99-486 Part 1, available at: http://beta.congress.gov/bill/99th-congress/senate-bill/430?q=%7B%22search%22%3A%5B%22foreign+trade+simplification%22%5D%7D (last visited: 10 May 2014).
- 13.
See Memorandum from John S.R. Shad, Chairman, U.S. Sec. and Exch. Commission, to Rep. Timothy E. Wirth, Chairman, Subcomm. Telecomms., Consumer Prot., and Fin. of the H. Energy and Commerce Comm. 350, 22 February 1984 (Atkins and Bondi 2008: 384).
- 14.
U.S. Sec. and Exch. Comm’n, Memorandum of the Securities and Exchange Commission in Support of the Securities Law Enforcement Remedies Act of 1989, reprinted in H.R. No. 975, 101st Cong., p. 7 (Atkins and Bondi 2008: 384).
- 15.
The Securities Enforcement Remedies Act of 1989: Hearing before the Sec. Subcomm. of the Senate Banking, House, and Urban Affairs Commission (1 February 1990) (statement of Gary G. Lynch) (Atkins and Bondi 2008: 385).
- 16.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 47 (testimony of John Shad).
- 17.
1979 SEC Annual Report, 45th Annual Report of the Securities and Exchange Commission for the fiscal year ended September 30, 1979, p. vi.
- 18.
1980 SEC Annual Report, 46th Annual Report of the Securities and Exchange Commission for the fiscal year ended September 30, 1980.
- 19.
See Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 97th Congress, 1981, p. 82 (testimony of William Brock) 1981 (Adler 1982: 1760).
- 20.
1980 SEC Annual Report, 46th Annual Report of the Securities and Exchange Commission for the fiscal year ended September 30, 1980, ix.
- 21.
1980 SEC Annual Report, 46th Annual Report of the Securities and Exchange Commission for the fiscal year ended September 30, 1980, p. ix.
- 22.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 2 (statement of Senator D’Amato).
- 23.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 2 (statement of Senator Heinz).
- 24.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, pp. 55–57 (testimony of Lionel Olmer, Under Secretary of Department of Commerce).
- 25.
See SEC Press Release, “SEC Enforcement Actions: FCPA Cases,” available at: http://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml (last visited: 31 July 2014).
- 26.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 53 (testimony of John Shad). By 1998, among over 300 enforcement actions of the SEC, only four actions were under the anti-bribery provisions. See Hearing on the International Anti-Bribery and Fair Competition Act of 1998 before the Subcommission on Finance and Hazardous Materials of the Comm. on Commerce, 105th Congress, (statement of Paul V. Gerlach, Associate Director of Division of Enforcement, SEC) (Black 2012: 1106).
- 27.
The number of enforcement actions during this period was very small. See SEC Press Release, “SEC Enforcement Actions: FCPA Cases,” available at: http://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml (last visited: 29 July 2014).
- 28.
See SEC Press Release, “SEC Enforcement Actions: FCPA Cases,” available at: http://www.sec.gov/spotlight/fcpa/fcpa-cases.shtml (last visited: 29 July 2014).
- 29.
In 1990, Gary Lynch, the Director of Enforcement of the SEC stated that, “I think it is important for the Commission to maintain its historical focus on achieving remedial relief, rather than taking punitive action in every case, and that the Commission should still continue to judge the effectiveness of the Commission’s enforcement program based on what it actually accomplishes, as opposed to what the dollar amount is that is ordered in a particular case.” The Securities Enforcement Remedies Act of 1989: Hearing before the Subcommittee on Securities of the Committee on Banking, House, and Urban Affairs, United States Senate, 101st Congress, 2nd session, 1 and 8 February 1990, p. 116 (statement of Gary G. Lynch).
- 30.
§301 of the Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, 109 Stat. 737 (22 December 1995).
- 31.
A basic view of Wyden then was that the financial reporting system had loopholes and in many revealed financial scandals auditors were blamable. As he puts it in a 1990 statement, “The GAO, in a 1989 study of 11 failed S and L’s, found that in more than half of those cases, ‘CPA’s did not adequately audit and/or report the S and L’s financial or internal control problems in accordance with professional standards.’” Expanding Auditor Responsibility: Hearing before the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce, House of Representatives, 101st Congress, Second Session, p. 4 (2 August 1990).
- 32.
Wyden stated in 1986: “all too often in recent years, independent auditors either have failed to detect or to report fraudulent activities at a number of major corporations and financial institutions in this country … a unanimous Senate subcommittee report required auditors to report illegal acts to government authorities for many years but the accounting profession had abdicated their responsibility, it is time for Congress to step in.” 132 Cong. Rec. E1837 (daily ed. 22 May 1986) (statement of Ron Wyden) (Riesenberg 2001: 1417).
- 33.
H.R. 4886, 99th Cong. (1986), available at: https://beta.congress.gov/bill/99th-congress/house-bill/4886 (last visited: 31 July 2014).
- 34.
See SEC and Corporate Audits: Hearings on Detecting and Disclosing Financial Fraud before the Subcomm. On Oversight and Investigations of the Comm. On Energy and Commerce, 99th Cong. 129 (statement of Phillip B. Chenok) (Riesenberg 2001: 1422).
- 35.
See SEC and Corporate Audits: Hearings on Detecting and Disclosing Financial Fraud before the Subcomm. On Oversight and Investigations of the Committee on Energy and Commerce, 99th Cong. 302 (1985) (statement of John Shad, SEC Chairman) (Riesenberg 2001: 1422).
- 36.
For information on the content and objective of the new proposal see H. R. 5439, 99th Cong. (1986), and 132 CONG. REC. E2986 (daily ed. 15 August 1986) (statement of Rep. Wyden) (Riesenberg 2001: 1423).
- 37.
See Expanding Auditor Responsibility: Hearing before the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce, House of Representatives, 101st Congress, Second Session (2 August 1990).
- 38.
James R. Doty (SEC General Counsel) stated in the 1990 hearing, “Any decision to impose additional, new requirements for early fraud detection, as has been mentioned today, involves striking a difficult balance between the benefits of finding fraud at an early state and the costs to the capital formation process associated with new or extended procedures. That task is complex. It requires careful judgments, weighing incremental benefits against costs, and it requires the skills correctly to identify and define the types of problems that auditors my reasonably be expected to uncover during the course of an audit.” Expanding Auditor Responsibility: Hearing before the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce, House of Representatives, 101st Congress, Second Session, p. 74 (2 August 1990) (statement of James R. Doty).
- 39.
He stated in the 1990 hearing that “we are prepared to statutorily define audit procedures related to illegalities and related party transactions, provided that those procedures are consistent with the professional literature and are within the auditor’s competence to perform. Regrettably, there are some items in the July 30 discussion draft relating to audit procedures to detect illegal acts with which we have difficulty.” Expanding Auditor Responsibility: Hearing before the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce, House of Representatives, 101st Congress, Second Session, p. 96 (2 August 1990) (statement of Donald L. Neebes). For information on the industrial standards of the accounting profession then see Codification of Auditing Standards and Procedures Statement on Auditing Standards, No. 53, No. 54 (American Inst. Of Certified Pub. Accountants 1989).
- 40.
See 136 CONG. REC. H13, 288 (27 October 1990) (statement of Rep. Brooks) (Riesenberg 2001: 1424).
- 41.
As Richard C. Breeden (SEC Chairman) stated, “The Commission believes that adoption of H.R. 574 would not represent a dramatic change in existing law, though it would represent a step in the right direction. Proposed Section 10A is based on, and would serve to codify, existing auditing standards and practice currently aimed at the detection of fraudulent activity.” Financial Fraud Detection: Hearings on H.R. 574 before the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce, House of Representatives, 103rd Congress p. 50 (18 February 1993) (statement of Richard C. Breeden).
- 42.
§ 10A (a) of the Securities Exchange Act of 1934 provides that, “Each audit required pursuant to this tile of the financial statements of an issuer by a registered public accounting firm shall include, in accordance with generally accepted auditing standards, as may be modified or supplemented from time to time by the Commission—(1) procedures designed to provide reasonable assurance of detecting illegal acts that would have a direct and material effect on the determination of financial statement amounts; (2) procedures designed to identify related party transactions that are material to the financial statements or otherwise require disclosure therein; and (3) an evaluation of whether there is a substantial doubt about the ability of the issuer to continue as a going concern during the ensuring fiscal year.” § 10 A (a) of the Securities Exchange Act of 1934.
- 43.
§ 10A (b) (1) provides that, “If, in the course of conducting an audit pursuant to this tile to which subsection (a) applies, the registered public accounting firm detects or otherwise becomes aware of information indicating that an illegal act (whether or not perceived to have a material effect on the financial statements of the issuer) has or may have occurred, the firm shall, in accordance with generally accepted auditing standards, as may be modified or supplemented from time to time by the Commission—(A) (i) determine whether it is likely that an illegal has occurred; and (ii) if so, determine and consider the possible effect of the illegal act on the financial statements of the issuer, including any contingent monetary effects, such as fines, penalties, and damages; and (B) as soon as practicable, inform the appropriate level of the management of the issuer and assure that the audit committee of the issuer, or the board of directors of the issuer in the absence of such a committee, is adequately informed with respect to illegal acts that have been detected or have otherwise come to the attention of such firm in the course of the audit, unless the illegal act is clearly inconsequential.” § 10 A (b) (1) of the Securities Exchange Act of 1934.
- 44.
§ 10A (b) (2) provides that, “If, after determining that the audit committee of the board of directors of the issuer, or the board of directors of the issuer in the absence of an audit committee, is adequately informed with respect to illegal acts that have been detected or have otherwise come to the attention of the firm in the course of the audit of such accountant, the registered public accounting firm concludes that—(A) the illegal act has a material effect on the financial statements of the issuer; (B) the senior management has not taken, and the board of directors has not caused senior management to take, timely and appropriate remedial actions with respect to the illegal act; and (C) the failure to take remedial action is reasonably expected to warrant departure from a standard report of the auditor, when made, or warrant resignation from the auditor engagement; the registered public accounting firm shall, as soon as practicable, directly report its conclusions to the board of directors.” § 10A(b) (3) provides that “An issuer whose board of directors receives a report under paragraph (2) shall inform the Commission by notice not later than 1 business day after the receipt of such report and shall furnish the registered public accounting firm making such report with a copy of the notice furnished to the Commission. If the registered public accounting firm fails to receive a copy of the notice before the expiration of the required 1-business-day period, the registered public accounting firm shall—(A) resign from the engagement; or (B) furnish to the Commission a copy of its report (or the documentation of any oral report given) not later than 1 business day following such failure to receive notice.” § 10 A (b) (2) and (3) of the Securities Exchange Act of 1934.
- 45.
SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), p. 1, available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 46.
As SAB 99 summarizes, §13 (b)(2)–(7) of the Securities Exchange Act of 1934 require issuers “must make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of the registrant and must maintain internal accounting controls that are sufficient to provide reasonable assurances that, among other things, transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP. In this context, determinations of what constitutes ‘reasonable assurance’ and ‘reasonable detail’ and degree of assurance that would satisfy prudent officials in the conduct of their own affairs.” SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), p. 2, available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 47.
SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 48.
See SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), p. 1, available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 49.
See SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), endnote 41, available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 50.
SAB 99 has words that “Section 10A (b) (1) requires the auditor to inform the appropriate level of management of an illegal act (unless clearly inconsequential) and assure that the registrant’s audit committee is ‘adequately informed’ with respect to the illegal act.” SEC Staff Accounting Bulletin No. 99—Materiality (Release No. SAB 99), available at: https://www.sec.gov/interps/account/sab99.htm (last visited: 12 May 2014).
- 51.
§ 10A (d) of the Securities Exchange Act of 1934 authorizes the SEC the power to impose civil penalties against an accounting firm: “(d) Civil penalties in cease-and-desist proceedings.—If the Commission finds, after notice and opportunity for hearing in a proceeding instituted pursuant to section 21C, that an independent public accountant has willfully violated paragraph (3) or (4) of subsection (b), the Commission may, in addition to entering an order under section 21C, impose a civil penalty against the independent public accountant and any other person that the Commission finds was a cause of such violation. The determination to impose a civil penalty and the amount of the penalty shall be governed by the standards set forth in section 21B.” Section 10A (e): “Preservation of existing authority.—Except as provided in subsection (d), nothing in this section shall be held to limit or otherwise affect the authority of the Commission under this title.” § 10 A (d) (e) of the Securities Exchange Act of 1934.
- 52.
Sarbanes-Oxley Act of 2002, Public Law 107-204, 116 STAT. 745, 30 July 2002, available at: https://www.sec.gov/about/laws/soa2002.pdf (last visited: 4 May 2014).
- 53.
Title I, Sarbanes-Oxley Act of 2002, Public Law 107-204, 116 STAT. 745, 30 July 2002, available at: https://www.sec.gov/about/laws/soa2002.pdf (last visited: 4 May 2014).
- 54.
See The Foreign Account Tax Compliance Act of 2010.
- 55.
United States v. Kenny International Corp. Court Docket Number: 79-CR-372, (filed on 2 August 1979 in the District of Columbia), available at: http://www.justice.gov/criminal/fraud/fcpa/cases/kenny-international.html (last visited: 20 May 2014).
- 56.
United States v. Sam P. Wallace Company, Inc. Court Docket Number: 83-CR-034, (filed on 23 February 1983 in the District of Puerto Rico), available at: http://www.justice.gov/criminal/fraud/fcpa/cases/sam-wallace-company.html (last visited: 20 May 2014).
- 57.
See SEC 1981 Annual Report, 47th Annual Report of the Securities and Exchange Commission for the Fiscal Year ended September 30, 1981, p. 62, available at: http://www.sec.gov/about/annual_report/1981.pdf (last visited: 20 May 2014). Also see SEC v. Sam P. Wallace Co. Inc., Robert Buckner and Alfonso Rodriguez (81-cv-1915) (D.D.C., 13 August 1981).
- 58.
For the law see Public Acts of the Forty First Congress, 22 June 1970, available at: http://memory.loc.gov/cgi-bin/ampage?collId=llslandfileName=016/llsl016.dbandrecNum=197 (last visited: 19 May 2014). For relevant information see DOJ Press Release, “Statutory Authority,” available at: http://www.justice.gov/about/about.html (last visited: 31 July 2014).
- 59.
DOJ Press Release, “Our Mission Statement,” available at: http://www.justice.gov/about/about.html (last visited: 19 July 2014).
- 60.
See § 1 of Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1–7 (2 July 1890).
- 61.
This expansion of the DOJ’s enforcement activities is discussed at http://www.justice.gov/atr/public/guidelines/209114.htm (last visited: 27 July 2014).
- 62.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 2 (statement of Senator D’Amato).
- 63.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 2 (statement of Senator Heinz).
- 64.
“Justice Outlines Priorities in Prosecuting Violations of Foreign Corrupt Practices Act,” AM. BANKER, 21 November 1979, pp. 8, 10 (Urofsky et al. 2012: 1147).
- 65.
See Appendix of Senate Report No. 105-277 (4 May 1998), available at: http://www.justice.gov/criminal/fraud/fcpa/docs/senaterpt.pdf (last visited: 20 July 2014).
- 66.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, pp. 55–57 (testimony of Lionel Olmer, Under Secretary of Department of Commerce).
- 67.
Business Accounting and Foreign Trade Simplification Act: Joint Hearing before the Subcommittee on International Finance and Monetary Policy of the Committee on Banking, Housing, and Urban Affairs, United States Senate, 98th Congress, first session, on S. 414, 24 February 1983, p. 3 (statement of Senator Heinz).
- 68.
For enforcement actions brought by the DOJ see US Press Release, “FCPA and Related Enforcement Actions,” available at: http://www.justice.gov/criminal/fraud/fcpa/cases/a.html (last visited: 31 July 2014).
- 69.
Then, Siemens agreed to pay $350 million in disgorgement to the SEC, $450 million criminal fine to the DOJ, and a fine of over $850 million to German enforcing agencies. See SEC Press Release, “SEC Files Settled Foreign Corrupt Practices Act Charges against Siemens AG for Engaging in Worldwide Bribery with Total Disgorgement and Criminal Fines of Over $1.6 Billion,” Litigation Release No. 20829, 15 December 2008, available at: http://www.sec.gov/litigation/litreleases/2008/lr20829.htm (last visited: 8 May 2014).
- 70.
See DOJ Press Release, “Statutory Authority,” available at: http://www.justice.gov/about/about.html (last visited: 21 May 2014).
- 71.
See False Claims Act Amendments, Ch. 377, 57 Stat. 608 (23 December 1943) (codified as amended at §3730 (d) and §3730 (e)).
- 72.
False Claims Act Amendments, Pub. L. 99-562, 100 Stat. 3153 (27 October 1986).
- 73.
Fraud Enforcement and Recovery Act of 2009, Pub. L. 111-21, S. 386, 123 Stat. 1617 (20 May 2009).
- 74.
§ 32 (c) (2) of the Exchange Act (1997 version) provides, “(B) Any employee or agent of an issuer who is a United States citizen, national, or resident or is otherwise subject to the jurisdiction of the United States … who willfully violates section 78dd-1 (a) of this title, shall be fined not more than $100,000, or imprisoned not more than 5 years, or both. (C) Any officer, director, employee, or agent of an issuer, or stockholder acting on behalf of such issuer, who violates section 78 dd-1 (a) of this title shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Commission.” § 32 (c) of the Securities Exchange Act of 1934 (1997 version).
- 75.
§ 32 (c) (2) of the Exchange Act (1997 version) provides, “(B) Any officer, director, employee, or agent of an issuer, or stockholder acting on behalf of such issuer, who violates subsection (a) or (g) of section 78dd-1 of this title shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Commission.” § 32 (c) of the Securities Exchange Act of 1934 (1998 version).
- 76.
See Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Commentary) at para. 25.
- 77.
See United States v. JGC Corporation, Docket No: 11-CR-260 (filed on 6 April 2011, in the Southern District of Texas), available at: http://www.justice.gov/criminal/fraud/fcpa/cases/jgc-corp.html (last visited: 28 July 2014).
- 78.
In 1990, as a part of the Omnibus Budget Reconciliation Act of 1990 established the “Pay-As-You-Go” rule (the PAYGO rule), requiring new spending or tax changes not to worsen the federal deficit. Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, 104 Stat. 1388 (5 November 1990).
- 79.
Christopher Cox (SEC Chairman) said in 2008 that, “It is because we understand the direct connection between strong markets and securities law enforcement that the SEC has consistently made enforcement our top priority. Today, more than one third of the entire agency works in our enforcement program. We currently devote a higher percentage of the SEC’s total staff to enforcement than at any time in the past 20 years … The SEC brought a record number of enforcement actions against market manipulation in 2008 … We’re proud to point out that in 2008, the SEC brought the highest number ever of insider trading cases in our agency’s history… The same is true with our record-setting number of cases under the Foreign Corrupt Practices Act against public companies that use corporate funds to bribe foreign officials. Since January 2006, the SEC has brought 38 of these foreign bribery cases—more than were brought in all prior years combined” (Cox 2008).
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Liu, L. (2019). Inspirations from the US’ Increasingly Aggressive Enforcement. In: The Global Collaboration against Transnational Corruption. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-13-1138-3_5
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