Friday Roundup
Acquitted, scrutiny alert, under scrutiny again, across the pond, and compassionate release. It’s all here in the Friday roundup.
Acquittals
The so-called conventional wisdom in the U.S. is that business organizations under Foreign Corrupt Practices Act scrutiny (particularly publicly-traded corporations) simply can’t put the DOJ (or SEC for that matter) to its burden of proof in an enforcement action because it is too risky and may result in a “death sentence” for the company.
As highlighted in this post, the conventional wisdom is b.s., but the narrative still persists. In other countries however, corporations more frequently put government enforcement agencies to their burdens of proof by making factual and legal arguments.
UK Supreme Court Rules That SFO Cannot Require Foreign Companies To Produce Documents Held Overseas
[A guest post from Debevoise & Plimpton attorneys Karolos Seeger, Jane Shvets, Robin Loof, Thomas Jenkins and Andrew Lee]
On February 5th, the UK Supreme Court handed down a highly-anticipated judgment, holding that the Serious Fraud Office (“SFO”) cannot issue a notice (a “section 2 Notice”) under s2(3) of the Criminal Justice Act 1987 (“CJA”) requiring a foreign company with no UK presence to produce material. Basing its decision on international comity, the construction of the CJA and subsequent legislative developments, including the adoption of mutual legal assistance agreements, the UK Supreme Court confined the use of section 2 Notices to UK companies and (possibly) foreign companies established or carrying on business in the UK.
The UK Serious Fraud Office 2020 Deferred Prosecution Agreement Guidance: Something Old and Something New
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.
Potpourri
Agreement in Principle
As highlighted in prior posts here and here in 2016 hedge fund Och-Ziff resolved a $412 million Foreign Corrupt Practices Act enforcement action concerning improper business practices in various African countries.
As highlighted in this 2018 post, former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.
An In-Depth Look At The U.K. Prosecution Of Airbus
These pages have long asserted that if a country is to have a deferred prosecution regime that the regime in the United Kingdom (which requires meaningful judicial review and approval) is far more preferable than the U.S. regime.
This is apparent when reviewing the Statement of Facts,, Deferred Prosecution Agreement and Approved Judgment relevant to the U.K. Serious Fraud Office prosecution of Airbus. (See here for a collection of the U.K. documents and see here for the prior post regarding the U.S. enforcement action). The U.K. documents provided a substantially more thorough and transparent glimpse into the underlying conduct compared to the U.S. resolution documents.