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

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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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Using An Asset Purchase Transaction Structure To Mitigate FCPA Risk

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This post is authored by Foley & Lardner attorneys David Simon, Rohan Virginkar, James Peterson, Kristen Maryn and Stephanie Cash.

Experienced practitioners and dealmakers understand there may be Foreign Corrupt Practices Act risks in an acquisition and have adopted procedures designed to identify and address these issues as part of the M&A diligence process.  Most acquirers ask the right questions, conduct risk-based probes of the target’s compliance program and operations, take steps to allocate the risk of compliance issues in the transaction documents and, in some circumstances, structure the transaction as an asset purchase rather than as a stock purchase or merger.

Where FCPA issues are discovered in the due diligence process, there is an increasingly well-established playbook for addressing and mitigating the exposure created by these issues, including mitigating the resulting risks by taking advantage of the Department of Justice’s (DOJ’s) Corporate Enforcement Program (CEP), requiring voluntary self-disclosure by the target, and thus avoiding a carry-over enforcement action against the acquirer.

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French Anti-Corruption Agency Issues Annual Report

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Today’s post is from Paris-based Bryan Cave Leighton Paisner attorneys David Père, Ariane Dulcire and Cécile Terret.

The French Anti-Corruption Agency (AFA) was created by Law n°2016-1691 of 9 December 2016 known as the Sapin II Law. As part of its missions, Article 3 of the Law provides that it prepares an annual activity report that is made public. In these annual reports, the AFA sets out the actions, work and events it carried out during the past year, in accordance with the missions entrusted to it by the French legislator.

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Are SEC Tolling Agreements Actually Enforceable?

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A guest post from Russell Ryan (King & Spalding and former Assistant Director of the SEC’s Division of Enforcement).

Most readers of FCPA Professor are well aware that tolling agreements are commonplace in Foreign Corrupt Practices Act investigations.  Investigations in this space are notoriously lengthy and protracted, in part because misconduct can remain hidden for years and a good portion of the relevant evidence and witnesses is typically located overseas.

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French Minister Of Justice Releases Guidelines To Fight International Corporate Corruption

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A guest post today from Paris-based Bryan Cave Leighton Paisner attorneys Cécile Terret and David Père.

On 2 June 2020, French Minister of Justice Nicole Belloubet released guidelines to prosecutors setting out the contours of French criminal policy regarding international corruption (the “Note”). This Note recalls the major role to be played by the National Financial Prosecutor’s Office (PNF) and then presents the principles that should guide legal action and sanctions.

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