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Canada Should Say No To DPAs

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On June 17, 2015, I attended a meeting in Toronto at the invitation of Transparency International – Canada Legal Committee. My powerpoint presentation titled “Canada Should Say No to DPAs” is here.

Given the types of individuals in the room and those joining the meeting via phone (generally speaking lawyers, accountants and others who stand to benefit from more enforcement of Canada’s Corruption of Foreign Public Officials Act – CFPOA), I didn’t really expect to change minds regarding the then early push by certain Canadian participants to adopt DPAs to resolve alleged instances of CFPOA scrutiny.

Thus, I was not surprised to read this July 2017 report released by TI-Canada titled “Another Arrow in the Quiver? Consideration of Deferred Prosecution Agreement Scheme in Canada.” This post analyzes the TI-Canada report and just like I urged the U.K. not to adopt DPAs (see here), just like I urged Australia not to adopt DPAs (see here), I urge Canada not to adopt DPAs.

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A Seeming Mismatch

mismatch

Foreign Corrupt Practices Act enforcement officials frequently invoke national security and foreign affairs when talking about FCPA enforcement

Here are just a few recent quotes:

“We stand at a critical juncture in the fight against transnational corruption.  And the importance of this fight cannot be overstated.  The impact of corruption is unambiguous.  Because of the efforts of prosecutors in countries across the globe—some of them the very definition of high risk—the curtain has been ripped back/ revealing deep-rooted and pervasive corruption up to the highest levels of governance/ and putting on display for the world to see its devastating effects:

The way that corruption undermines the rule of law and destabilizes economies; the link between corruption and terrorism and the attendant threat to global security; the erosion of the free and fair market and, with it, the public’s confidence.” (See here).

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FCPA Flash – A Conversation With James Copland Regarding NPAs and DPAs

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash podcast is a conversation with James Copland (senior fellow at the Manhattan Institute and director of Legal Policy). Copland has written extensively about the increased use of non-prosecution and deferred prosecution agreements including this recent report titled “The Shadow Regulatory State at the Crossroads: Federal Deferred Prosecution Agreements Face an Uncertain Future.” During the podcast, Copland discusses: why the increased use of NPAs and DPAs is concerning; whether the DOJ (and SEC) should abolish use of NPAs and DPAs; and whether business organizations (and their tendency to be excessively risk averse) are partly to blame for the current state of affairs.

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Friday Roundup

Roundup

Guilty plea, scrutiny alerts, and for the reading stack. It’s all here in the Friday roundup.

Guilty Plea

As highlighted in this prior post, in July 2011 the DOJ criminally charged Amadeus Richers (a former director of Cinergy Telecommunications with one count of conspiracy to violate the FCPA and to commit wire fraud, six counts of FCPA violations, one count of conspiracy to commit money laundering and 19 counts of money laundering) in the sprawling Haiti Teleco enforcement action.

Although Richers was indicted, he remained a fugitive until his arrest and ultimately his extradition from Panama on February 23, 2017.

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In-Depth On The Second Circuit’s Recent HSBC Decision

Judicial Decision

This February 2016 post awarded an FCPA Professor Apple Award to then U.S. District Court Judge John Gleeson (E.D.N.Y.) for championing transparency and not acquiescing in secret criminal law enforcement by finding that an HSBC Monitor Report (a condition of a deferred prosecution agreement) was “a judicial record, and that the public has a First Amendment right to see the Report.”

In this recent decision a Second Circuit panel consisting of Judge Katzmann, Judge Pooler and Judge Lynch (the first two President Clinton appointees and the later a President Obama appointee), reversed and held that the “Monitor’s Report is not a judicial document because it is not now relevant to the performance of the judicial function.”

The Second Circuit opinion is troubling / interesting on many levels.

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