Over at the FCPA Professor blog, which celebrated its 5th birthday this week, Professor Mike Koehler offers an important reminder to those who would compare the SEC's enforcement in the FCPA area to that of the DOJ. 

Kohler's post was prompted by a Wall Street Journal Risk & Compliance Journal article last week ("SEC Stays on the FCPA Sidelines") that argued the SEC had "largely stayed on the sidelines of anti-bribery enforcement so far this year" because it "brought just two enforcement actions tied to the Foreign Corrupt Practices Act in the first six months of the year, compared to 13 brought by the Justice Department.” Koehler writes that the SEC-DOJ comparison is not a fair one to draw conclusions from because the SEC has much more limited jurisdiction to enforce FCPA matters. "It is not that the SEC is staying on the 'sidelines,' rather it is not allowed under the FCPA to step onto the same 'playing field' as the DOJ," Koehler writes.

Specifically, Kohler points out, the SEC only has jurisdiction under the FCPA over issuers and "associated persons." The DOJ's jurisdiction includes these issuers and associated persons, but also all U.S. companies, all U.S. persons, and "literally any company in the world or any person in the world to the extent certain jurisdictional requirements are met." 

Koehler also observes that in the 2014 cases where the SEC and the DOJ both had jurisdiction (issuer FCPA enforcement actions), "there is perfect 2 for 2 overlap as the SEC also brought enforcement actions against HP and Alcoa."

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