In this webinar, James G. Tillen, Marc Alain Bohn,* and Saskia Zandieh* discussed their recent publications evaluating the FCPA Pilot Program and the Supreme Court's recent decision in Kokesh v. SEC. In "Evaluating FCPA Pilot Program: Declinations on the Rise," Mr. Bohn and Mr. Tillen reviewed the state of the Department of Justice's (DOJ's) Foreign Corrupt Practices Act (FCPA) declinations after one year of the agency’s enforcement Pilot Program, which sought to promote greater accountability for companies and individuals who violate the FCPA, while rewarding those who voluntarily self-disclose violations and cooperate with investigations and remediation efforts.

In "Kokesh v. SEC: The Supreme Court Reins in SEC Enforcement," and "After Kokesh, New Pressure on SEC to Settle Faster," Ms. Zandieh and Mr. Bohn each explored the implications of the Kokesh decision, which found that that the five-year statute of limitations set forth in 28 U.S.C. § 2462 applies to Securities and Exchange Commission (SEC) disgorgement.

During the webinar, Mr. Tillen, Mr. Bohn, and Ms. Zandieh addressed the following issues:

• Do the numbers show any increase in declinations in 2016 over the past few years?
• What are the conditions to obtain a declination? Is any one condition considered more important or are they of equal importance?
• Is there any reason not to publicize all declinations?
• How is SEC enforcement a factor in DOJ's calculus in determining whether or not to grant a declination?
• In 2016 there were two declinations which involved privately held companies and hence no SEC prosecution. How did the DOJ get to profit disgorgement?
• What could be the fate of the Pilot Program going forward?
• What is the real significance of the Kokesh decision?
• What effect will Kokesh have on the SEC's existing cases?
• How is Kokesh likely to affect SEC enforcement efforts going forward?
• What leverage does Kokesh provide to companies under investigation?
• How will Kokesh influence voluntary disclosure decisions?
• Does Kokesh call into question the SEC's authority to impose disgorgement altogether?

*Former Miller & Chevalier attorney