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A Comparative Study Of DPAs

By on June 2, 2022 in Deferred Prosecution Agreements, Guest Posts, Judicial Role in Deferred Prosecution Agreements
comparison

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).

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OECD Revises Its “Recommendations” And Green Lights The Facade Of Enforcement

By on November 30, 2021 in Deferred Prosecution Agreements, Gray Cloud, Non-Prosecution Agreement, OECD
Greenlight

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).

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Deputy AG Monaco On Individual Accountability, Prior Misconduct, Monitors, And NPAs and DPAs (With Commentary)

By on November 1, 2021 in Deferred Prosecution Agreements, DOJ, Enforcement Agency Policy, Enforcement Agency Speeches, Individual Enforcement Action, Monitor, Non-Prosecution Agreement, Repeat Offenders, Uncategorized
Monaco

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):

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DOJ Accuses Ericsson Of Breaching DPA

By on October 22, 2021 in Deferred Prosecution Agreements, Ericsson, Uncategorized
UncleSam

As highlighted in this prior post, in December 2019 Swedish telecom company Ericsson (a company with American Depositary Shares traded in the U.S.) resolved a net $1.06 billion Foreign Corrupt Practices Act enforcement action – the largest of all-time – concerning conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia.

The DOJ prong of the enforcement action involved a one count criminal information against Ericsson subsidiary Ericsson Egypt Ltd. charging conspiracy to violate the FCPA’s anti-bribery provisions resolved through a plea agreement and a criminal information against Ericsson charging conspiracies to violate the FCPA’s anti-bribery, books and records, and internal controls provisions resolved through a deferred prosecution agreement.

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