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).
I focus on the extent of judicial review of corporate agreements, notably whether a judge must sign off on whether the agreement is “in the public interest.” It shows that the US is basically alone in eliminating any such judicial review; interestingly the most thorough judicial involvement occurs in England & Wales, where judges must sign off on a prosecutor’s application even to engage in negotiations as well as the appropriateness of the final result. The case of France is particularly interesting because it adopted a very American procedure and incorporated it into a very different — “civil law” as opposed to “common law” — system. Both the English and the French experiments seem generally successful, at least to judge from recent legislative reports commenting on the outcomes to date. No country, however, seems inclined to follow the “judges stay out” approach of the United States.
Although this is a separate issue not fully explored in my article, one issue I noticed is that in none of the three countries that have regularly used corporate DPAs have the prosecutors been very successful in prosecuting individual officers/employees who presumably or logically were responsible for the corporate conduct. This is certainly true in England, where as of the time of writing the article not a single individual had been convicted of crimes related to any of the roughly dozen corporate DPAs that have been publicly approved — even though in some instances the approving judges emphasized that the principal aim of the DPA was to facilitate such prosecutions. The relative success or non-success of individual prosecutions — including in the US, where the Yates memo was recently reemphasized by Deputy AG Lisa Monaco — is an interesting and complex issue that should include consideration of local bar rules and lawyer ethical guidelines concerning corporate internal investigations, which vary significantly from country to country.
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For additional reading on the general lack of individual charges in connection with most FCPA enforcement actions resolved through a DPA or NPA – see here.
