by John Savarese and Noah B. Yavitz
Earlier this week, the United Kingdom’s Serious Fraud Office (“SFO”) charged Barclays, its former CEO, and three other former top executives with criminal fraud. The prosecution stems from a long-running inquiry into whether Barclays failed to adequately disclose 322 million paid to Qatari investors in late 2008, during a period when the bank received billions in funding from affiliates of the Qatari government. Investigators reportedly examined whether Barclays and its former executives arranged for portions of the payments to be funneled into the Qatari bailout, in violation of British law. Despite this novel action, market reaction was muted, with Barclays’ shares trading in line with other U.K. banks.
This prosecution serves as a reminder to multinational corporations and their executives that the U.S. Department of Justice (“DOJ”) is not the only authority aggressively pursuing allegations of corporate crime. Indeed, the SFO may have stepped out ahead of DOJ, prompted in part by differences between U.S. and British criminal law. Despite actively pursuing allegations of corporate wrongdoing in recent years, DOJ generally has not leveled charges against top-level executives at leading banks; moreover, when bringing criminal charges against global financial institutions – most prominently, securing guilty pleas from five major banks in 2015, including Barclays – DOJ has refrained from seeking corporate indictments in advance of securing negotiated resolutions.
The announcement comes at a time when the SFO is seeking to demonstrate its ability to bring effective, high-profile prosecutions, after calls from the governing Conservative Party to disband the organization and fold it into other British law-enforcement entities. Meanwhile, Barclays has recently engaged in uncompromising negotiations with prosecutors, rebuffing a settlement with DOJ over civil claims that it misrepresented the value of mortgage-backed securities. Against that backdrop, observers will watch closely to determine whether the Barclays proceeding signals a continued ratcheting up of prosecutorial zeal – or merely represents the latest salvo from a hard-pressed prosecutor.
John F. Savarese is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz.
Noah B. Yavitz is an associate in Wachtell, Lipton, Rosen & Katz’s Litigation Department.
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