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SNC-Lavalin Continues To Pout

Child Crying

But Mom / Dad, when Johnny gets into trouble his parents do things a little bit differently, why can’t I benefit from that?

That was my reaction in this February 2015 post when SNC-Lavalin was criminally charged by Canadian authorities for alleged improper payments to Libyan officials. Upon being charged, the company issued this release stating:

“It is important to note that companies in other jurisdictions, such as the United States and United Kingdom, benefit from a different approach that has been effectively used in the public interest to resolve similar matters while balancing accountability and securing the employment, economic and other benefits of businesses.”

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Canada Now Has Deferred Prosecution Agreements

Canada2

A guest post today from Toronto-based Borden Ladner Gervais attorneys Milos Barutciski, Graeme Hamilton and Julia Webster.

On September 19, 2018, deferred prosecution agreements (DPAs) became available to resolve corporate offences in Canada under the Criminal Code and the Corruption of Foreign Public Officials Act.

Remediation Agreements will be available to resolve criminal charges against corporations, partnerships and other forms of business organizations without registering a criminal conviction. Remediation Agreements will be negotiated by the prosecution and the accused and are subject to judicial approval. They will typically be accompanied by the payment of penalties, restitution, implementation of compliance measures, and other terms and conditions as negotiated by the parties, including the potential appointment of corporate monitorships.

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Friday Roundup

Roundup

Interesting, across the pond, non-profit scrutiny, and for the reading stack. It’s all here in the Friday roundup.

Interesting

The DOJ’s FCPA’s Corporate Enforcement Policy states:

“When a company has voluntarily self disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated … there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”

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Friday Roundup

Roundup

Scrutiny alerts and updates, quotable, and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

As highlighted in this recent post, Glencore plc, an Anglo–Swiss mining company with headquarters in Switzerland and ADRs traded on a U.S. exchange recently announced that it received a subpoena from the DOJ “to produce documents and other records with respect to compliance with the Foreign Corrupt Practices Act and United States money laundering statutes.  The requested documents relate to the Glencore Group’s business in Nigeria, the Democratic Republic of Congo and Venezuela from 2007 to present.”

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Judge Chuang Is Right, Even Though He Felt Powerless To Act

Judge Chuang

Ever since non-prosecution agreements and deferred prosecution agreements have become a prominent feature of the Foreign Corrupt Practices Act landscape, I’ve noted that such alternative resolution vehicles are troubling for two distinct, yet equally problematic public policy issues.

In short, alternative resolution vehicles allow “under-prosecution” of egregious instance of corporate bribery, while at the same time facilitate the “over-prosecution” of business conduct.  (See here for the 2010 article “The Facade of FCPA Enforcement,” here for a prior post among others, and here for the 2015 article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement).

As to the former, kudos to Judge Theodore Chuang (D.Md.) for recognizing this as well.

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