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The UK Serious Fraud Office 2020 Deferred Prosecution Agreement Guidance: Something Old and Something New

SFO2

A guest post from Gibson Dunn attorneys Sacha Harber-Kelly and Steve Melrose.

Mr. Harber-Kelly is a former prosecutor at the SFO and was appointed to lead the SFO’s engagement in the cross-governmental working group which devised the DPA legislative framework, and subsequently appointed to draft the DPA Code of Practice, which sets out how prosecutors will operate the DPA regime.

On October 23, 2020, the UK Serious Fraud Office published a new chapter from its internal Operational Handbook, which it describes as “comprehensive guidance on how we approach Deferred Prosecution Agreements (DPAs), and how we engage with companies where a DPA is a prospective outcome.”

At the time of its publication, the Director of the SFO, Lisa Osofsky, remarked, “Publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us.” Director Osofsky’s full remarks are here.

The 2020 DPA Guidance (“the Guidance”) is here.

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From The Dockets

Judicial Decision

This post summarizes a strange state law claim filed by a former Walmart attorney and recent decision by a federal court judge concluding that resolving a Foreign Corrupt Practices Act enforcement action through a deferred prosecution agreement does not constitute a conviction.

Walmart Matter

Recently Shane Perry (a former Walmart attorney who worked on Walmart’s internal FCPA investigation in Mexico in 2011 and later became the Ethics Officer for Walmart de Mexico) filed this lawsuit in Arkansas state court claiming that on July 6, 2017 “he was terminated in a ruthless fashion based on information carelessly gathered and processed at the orders of senior management for punishment and retaliation.”

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OECD Report On Non-Trial Resolutions Contains Mounds Of Data, But Punts On The Pressing Questions

oecd

Recently, the OECD released this report titled “Resolving Foreign Bribery Cases with Non-Trial Resolutions.” As stated in the report “non-trial resolutions refer to a wide range of mechanisms used to resolve criminal matters without a full court proceeding, based on an agreement between an individual or a company and a prosecuting or another authority.” This term is obviously broad and covers a range of alternatives and there is little in common with a plea agreement compared to a non-prosecution agreement.

The 200+ page report and its six chapters contain mounds of comparative information and data that will likely be of interest to anyone interested in how foreign bribery enforcement actions are resolved.

Yet despite this data dump, the report punts on several pressing questions associated with alternative resolution vehicles. This is hardly surprising given that “the country mentors who provided guidance and contributed to the drafting” of the report were largely government officials including DOJ, SEC and U.K. SFO personnel.

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Friday Roundup

Roundup

Interesting, from the DOJ’s perspective, pay them more, sanctioned, scrutiny update, exit, and for the reading stack. It’s all here in the Friday roundup.

Interesting

As highlighted here, in December 2016 Odebrecht S.A. (a Brazilian holding company) and Braskem S.A. (a Brazil-based petrochemical company in which Odebrecht owns a majority of voting shares) resolved a large FCPA and related enforcement action largely concerning conduct in Brazil including the companies relationships with Petrobras as well as allegations of improper payments in Angola, Argentina, Brazil, Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama, Peru, and Venezuela.

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Five Years Later, Bilfinger Emerges From DPA – Transparency Nil

emerge

As highlighted in this previous post, in 2013 Germany-based Bilfinger resolved a Foreign Corrupt Practices Act enforcement action concerning conduct in Nigeria by agreeing to pay approximately $32 million. The enforcement action was resolved via a three-year deferred prosecution agreement and the company was required to engage a monitor for an 18 month period.

In September 2016, the DPA was extended because, in the words of the DOJ, of “the monitor’s inability to certify compliance with the compliance obligations in the 2013 Agreement after 18 months of monitorship.” In pertinent part the extended DPA stated:

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