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Long and Winding Road of FCPA Investigations

justice6We all know the legal maxim – justice delayed is justice denied. The origins of the phrase go way back in history.

Martin Luther King Jr. used the phrase in his letter from Birmingham jail in 1963, stating “justice too long delayed is justice denied.”

The principle underlies much of our justice system, including the Constitutional right to a speedy trial. As a former prosecutor and now defense attorney, I am well aware of the “costs” to an investigation subject from delay, especially in the white-collar context where reputational harm is significant.

Also, as a long-time AUSA in DC and manager/supervisor, I was extremely sensitive to management of a caseload and the duty to move cases. The Justice Department and the SEC attorneys have a duty to manage caseloads and move cases responsibly. I called it “cut and run.”  Either the government has the evidence or it does not – and they now fairly early on what direction a case is heading.

From my perspective on the defense side, what I see is fairly troubling, not from the Justice Department standpoint but from the SEC. DOJ is very sensitive to this issue and rarely request waivers of the statute of limitations/tolling agreements to complete investigation of their cases.

The SEC is another matter – what I have seen and heard from other counsel is long delays, even after a DOJ decision to decline case. The SEC needs to reexamine its priorities and case management because too many cases “sit” and are not resolved within a fairly reasonable time frame. That is troubling.

justiceAn investigation, whether criminal or civil, can have serious repercussions to a company, a senior executive and others who have participated in an investigation. SEC attorneys have a responsibility to move these cases, make educated and professional determinations as to who and what to investigate and how much to investigate.

The decision of who, what and how much to investigate requires careful management. Unfortunately, many companies remain under scrutiny despite DOJ decisions to decline prosecution. DOJ waits for the SEC but eventually decides to move forward without the SEC because the SEC is unwilling to reach a decision on a case.

The SEC’s failure to act reflects failure of management. Supervisors have a responsibility to hold enforcement attorneys accountable for their actions and investigative determinations.

At the SEC, investigative attorneys are separate from the trial attorneys. SEC Chairwoman White has pushed through some changes to improve coordination between SEC investigations and trial attorneys by bringing in trial attorneys at an earlier phase of an investigation. That is a great idea but managers of investigations have a responsibility to make decisions earlier in the process and either charge a company or an individual and move to the next phase.

justice5The SEC’s slow investigative process has resulted in questionable actions and unprofessional determinations. Someone has to hold them accountable. The courts have been reluctant or unable to do so and Congress does very little in the way of meaningful oversight.

In the meantime, SEC investigations slog along without any end in sight while mountains of document data sits on SEC computers without being reviewed. Corporate subjects are tired of this never-ending scrutiny and government attorneys have a responsibility to justice and the subjects of an investigation to push investigations and resolve cases as effectively as possible.

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