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6 Months Since Sarbanes/Oxley. 259 criminal actions in FY2002 by 30 different U.S. Attorney's Offices and DOJ for securities-related offenses or obstruction of justice in SEC investigations;

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6 Months Since Sarbanes/Oxley

  • 259 criminal actions in FY2002 by 30 different U.S. Attorney's Offices and DOJ for securities-related offenses or obstruction of justice in SEC investigations;

  • 163 SEC actions for financial reporting and issuer disclosure violations in FY2002, 46% higher than FY2001 and 58% higher than in FY2000;

  • Record 598 SEC enforcement actions, 24% more than in FY2001, and 19% more than in FY2000;

  • 126 officer/director bars, 147% more than in FY2001 and 232% more than in FY2000;

  • 48 TROs seeking immediate relief, up 55% from FY2001 and 45% from FY2000.


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Future of Enforcement

More Resources and Better Coordination:

  • DOJ Corporate Fraud Task Force (DOJ, FBI, Treasury, DOL, USPIS, SEC, CFTC, FERC, FCC)

  • U.S. Attorney ($9m in FY04 for new fraud prosecutors)

  • FBI ($16m in FY04 for new fraud agents)

  • SEC (47% increase in FY03 & 17% increase in FY04)

  • State Attorneys General

  • District Attorneys

  • State Securities Regulators

  • NYSE/Nasdaq/Other SROs


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DOJ Charging Principles

  • Factors used to decide whether to prosecute:

    • Nature and seriousness of offense

    • Pervasiveness of wrongdoing in corporation

    • Corporation’s history of similar conduct

    • Company’s voluntary disclosure and cooperation

    • Existence and adequacy of compliance program

    • Corporation’s remedial actions

    • Collateral consequences of prosecution

    • Adequacy of prosecuting only individuals for crime

    • Adequacy of civil or regulatory enforcement actions


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SEC’s New Enforcement Model

In evaluating charging decisions, Enforcement Division looks at 4 factors:

  • Self-policing: Did company establish effective compliance procedures?

  • Self-reporting: Did company conduct thorough review of misconduct, and promptly and completely disclose to regulators?

  • Remediation: Did company dismiss or appropriately discipline wrongdoers, and improve internal controls?

  • Cooperation: Did company provide SEC staff with all information on timely basis?


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What Actions Should Be Taken?

  • Make sure you have necessary compliance programs in place (general code of conduct and ethics, money laundering, FCPA, insider trading, antitrust, environmental, export/import controls, OSHA, etc.)

  • Director & Officer education and training

  • Internal financial reporting system for executive officer certification

  • Corporate Responsibility Officer

  • Internal systems for handling dissenters & whistleblowers


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