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.
As stated in the report:
“This Study was undertaken by the OECD Working Group on Bribery in International Business Transactions (“Working Group on Bribery” or “Working Group”) in order to take stock of the different types of non-trial resolutions available in the Parties to the Convention and analyse how these settlements are used in practice to resolve foreign bribery cases. The Study explores the reasons for, and impact of, the growing use of non-trial resolutions to resolve foreign bribery cases. It also assesses how and to what extent certain resolution rules and practices may allow for a steadier enforcement of the foreign bribery offence, both at the domestic level and in the context of multi-jurisdictional resolutions of foreign bribery investigations. The sanctions imposed and their deterrent role is also part of the focus of the Study as well as accessible guidance, procedural guarantees and, where relevant, the judicial or other review that may be exercised over these resolutions.
The Study provides practitioners, legislators, policy makers, the private sector and civil society, with statistics on the use of resolutions in enforcement actions since the entry into force of the Convention and an analysis of the common features and discrepancies between the various resolution systems available across the Parties to the Convention that are covered under this Study. It also provides practical information on methods, which have proven effective in practice in resolving foreign bribery cases through non-trial resolutions.”
There are many pressing legal and policy questions associated with alternative resolution vehicles, yet the OECD report punts on these issues.
For instance, the report states:
“As for all enforcement decisions, the Working Group closely monitors countries’ use of non-trial resolutions, to ensure that they do not take into account factors forbidden under Article 5 of the Convention, namely: “considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved”. Parties to the Convention should not be influenced by these factors when deciding to enter into a resolution nor should they take them into consideration when deciding on the types and level of sanctions.”
However, the report fails to mention that certain OECD countries (such as the U.K. and U.S.) resolve enforcement actions based on these so-called “forbidden” factors (see here and here for prior posts).
Moreover, the report punts on the issue of whether alternative resolution vehicles such as DPAs, NPAs, and declinations with disgorgement actually achieve deterrence. Not mentioned is the fact that many companies that have resolved FCPA enforcement actions through such alternative resolution vehicles have since become repeat offenders (see here).
As it relates to the U.S., the portion of the report concerning “resolutions concluded without any or only minimal court involvement” is deficient as it states:
“[A] handful of resolutions are merely filed in court with only a modicum of review. In the United States, for example, when the DOJ concludes a DPA, it will file charges in court, submit the DPA, and seek leave to suspend the trial proceedings for the time period in which the defendant has agreed to fulfil the conditions set forth in the resolution. This has the effect of ensuring the charges will remain pending until all the DPA conditions are fulfilled. If the defendant satisfies all the conditions, the court can grant leave to dismiss the charges entirely. If instead the defendant does not comply with the DPA’s terms, the prosecution can resume the proceedings.”
Um … what about NPAs, what about declinations with disgorgement? These alternative resolutions (used frequently by the DOJ) bypass judicial scrutiny altogether.
As stated in the report, “the country mentors who provided guidance and contributed to the drafting of the report include U.K. SFO personnel as well as:
“United States (Andrew Gentin, Senior Litigation Counsel, Samer Korkor, Trial Attorney, Fraud Section, Criminal Division, Department of Justice,Charles Cain, Unit Chief, FCPA Unit, Division of Enforcement, U.S. Securities and Exchange Commission, Erin McCartney, Senior Special Counsel, Office of International Affairs, US Securities and Exchange Commission and Paul Gumagay, Senior Special Counsel, Office of International Affairs, US Securities and Exchange Commission)”
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