Is The SEC Finished With NPAs And DPAs?
In early 2010, the SEC (see here) announced a series of measures “to further strengthen its enforcement program by encouraging greater cooperation from individuals and companies in the agency’s investigations and enforcement actions.”
The SEC’s then Director of Enforcement called the measures “a potential game-changer for the Division of Enforcement.”
Among the measures the SEC adopted was use of deferred prosecution agreements and non-prosecution agreements – resolution vehicles the SEC described as “tools [that] have been regularly and successfully used by the Justice Department in its criminal investigations and prosecutions” (which of course was and still remains a debatable point).
However, as highlighted below, since this “game-changing” moment at the SEC nearly 15 years ago, the agency has only used a DPA twice to resolve an issuer FCPA enforcement action and an NPA three times. Moreover, the SEC’s last use of an NPA or DPA to resolve an issuer FCPA enforcement was in mid-2016.
A Comparative Study Of DPAs
A guest post from Fred Davis.
The Columbia Journal of Transnational Law recently published my article Judicial Review of Deferred Prosecution Agreements: A Comparative Study, which is available here.
As the title suggests, the article looks at three countries that not only have procedures for corporate DPAs but have actually developed a track record using them (the US, the UK, and France), and also touches on several other countries that have adopted such legislation (Canada, Singapore) and still others that are contemplating doing so (Ireland, Australia) and countries with somewhat similar approaches (Brazil, Argentina).
Friday Roundup
Overheard, interesting and for the reading stack.
It’s all here in the Friday roundup.
Overheard
In connection with the ongoing saga of Ericsson (see here for a recent post) during a recent investor conference call, E. Borje Ekholm (President, CEO and Director) stated:
OECD Revises Its “Recommendations” And Green Lights The Facade Of Enforcement
Recently, the OECD released a laundry list of updated recommendations for “further combating bribery of foreign public officials in international business transactions.”
As further proof that the OECD prioritizes quantity of enforcement over quality of enforcement (see here), the OECD is now recommending that member countries to the OECD Anti-Bribery Convention “consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions.”
By doing so, the OECD is green lighting the “facade” of enforcement (see here and here for prior articles on the subject).
Deputy AG Monaco On Individual Accountability, Prior Misconduct, Monitors, And NPAs and DPAs (With Commentary)
Last week, Deputy Attorney General Lisa Monaco delivered this speech as part of the ABA’s National Institute on White Collar Crime.
While the speech is generating a significant amount of attention, substantively the speech was largely a yawner and the policy changes articulated are marginal at best and elevate form over substance.
As has been highlighted several times on these pages, FCPA (and related) enforcement has long suffered from the following problem (nicely articulated by a practitioner in 1982):