But for other more salacious political concerns, the biggest story of the last couple weeks likely would have been Mark Zuckerberg’s testimony before Congress. Zuckerberg spent two days answering hundreds of questions from lawmakers. Much of the questioning was concerned with Facebook’s protection, or alleged lack thereof, of its users’ privacy. The testimony, however, once again raises questions about how companies that engage in repeated instances of misconduct should be sanctioned. Continue reading
by Jason Driscoll
This post is the second part of a two-part post by the author.
In my previous post (DeCoster v. United States: Testing the Limits of the Responsible Corporate Officer Doctrine), I discussed how the Food and Drug Administration (“FDA”) and the Department of Justice (“DOJ”) have revived the Responsible Corporate Officer (“RCO”) doctrine in an attempt to increase compliance with the Federal Food, Drug, and Cosmetic Act (“FDCA”). In light of the incarcerative sentences in the Quality Egg case, I addressed the DOJ’s new strategy of seeking enhanced sanctions in RCO cases. In United States v. Quality Egg, LLC, the government brought FDCA Section 333(a)(1) misdemeanor food adulteration cases against two corporate officers—Jack and Peter DeCoster—ultimately securing three-month prison sentences premised largely on the RCO doctrine. On appeal, the DeCosters argued that the incarcerative sentences violated due process absent evidence of mens rea or actus reus. The Eighth Circuit affirmed the sentences, however, holding that a three-month strict liability prison sentence was “relatively light” doing “no grave damage” to an offender’s reputation. A petition for a writ of certiorari followed, inviting the Supreme Court to review the doctrine for the first time since 1975, but was denied. Continue reading
On 19 March 2018, Singapore passed legislation introducing the concept of the deferred prosecution agreement (“DPA”) to the jurisdiction for the first time. Under the new laws, corporations (but not individuals) facing prosecution for offences of corruption, money laundering or receipt of stolen property may attempt to negotiate the terms of a DPA with prosecuting authorities, under which they would avoid prosecution, in return for adherence to various conditions imposed upon them, for a set period of time.
By introducing the DPA as an enforcement tool, Singapore joins the ranks of the United States, Brazil, the United Kingdom and France, which form the vanguard of an increasingly consistent global approach to corporate criminal resolutions. Australia and Canada are also both currently evaluating whether to introduce similar legislation. Continue reading
Defense lawyers all around the world have heard loud and clear that prosecutors and police agencies have announced a new age of international cooperation. Prosecutors from one country have been posted to the offices of another. Agents from nations around the world now sit at desks next to each other in central locations like London. Global resolutions of big cases are being announced by enforcers in multiple jurisdictions. One of the main subject-matter focuses of these joint cases has been anti-corruption – namely the Foreign Corrupt Practices Act in the United States and the Bribery Act in the United Kingdom. Continue reading
by Omar Qureshi, Iskander Fernandez, and Amy Wilkinson
Last month saw the first contested prosecution of a corporation for failure to prevent bribery under section 7 of the U.K. Bribery Act 2010 (the “Bribery Act”), providing the first insights into how such a case may be argued and determined. The defendant company Skansen Interiors Limited (“SIL”) was found guilty of failing to prevent bribery by one of its employees, who paid £10,000 (and offered, and tried to secure payment of a further £29,000) to another in order to secure two contracts for SIL. The individuals involved had already pleaded guilty to substantive bribery offences.
A jury found SIL did not have adequate procedures designed to prevent bribery. While the judge did not give her views on what may constitute adequate procedures and why SIL’s fell short, the jury’s verdict indicates that even small companies may need to have documented and targeted procedures in place, specifically addressing bribery prevention, if they are to succeed in proving an adequate procedures defence. Continue reading
Late last week, the Department of Justice’s Criminal Division announced at an ABA white-collar conference that it has begun using the FCPA Corporate Enforcement Policy as “nonbinding guidance” in other areas of white-collar enforcement beyond the FCPA. As a result, absent aggravating factors, DOJ may more frequently decline to prosecute companies that promptly self-disclose misconduct, fully cooperate with DOJ’s investigation, remediate in a complete and timely fashion, and disgorge any ill-gotten gains. As a first example of this approach, the officials pointed to DOJ’s recent decision to decline charges against Barclays PLC, after the bank agreed to pay back $12.9 million in wrongful profits, following individual charges arising out of a foreign exchange front-running scheme. Continue reading
Following the decisions in The RBS Rights Issue Litigation and Serious Fraud Office v Eurasian Natural Resources Corporation Limited (“ENRC”), it was thought that the prospect of claiming legal professional privilege in English proceedings over interview memoranda generated during internal investigations was slim (see our client alert on those two cases here). However, a recent decision of the English High Court in Bilta (UK) Limited and Others v (1) Royal Bank of Scotland Plc (2) Mercuria Energy Europe Trading Limited (“Bilta”) has refused the disclosure of interview memoranda on the basis of litigation privilege, providing a glimmer of hope for corporates who seek to protect such documents from disclosure. Continue reading
As governments around the world watch the rising tide of public sentiment and law enforcement actions against corruption, some are looking to the United Kingdom Bribery Act 2010 (the “Act”) as a model for crafting their own criminal sanctions, including with regard to corporate criminal liability. Section 7 of the Act, which is captioned, “Failure of commercial organization to prevent bribery,” defines the offense in just 45 words:
A relevant commercial organisation (“C”) is guilty of an offence under this section if a person (“A”) associated with C bribes another person intending—
(a) to obtain or retain business for C, or
(b) to obtain or retain an advantage in the conduct of business for C.
Unless the company, as an affirmative defense, can “prove that [it] had in place adequate procedures designed to prevent persons associated with [it] from undertaking such conduct,” it faces a criminal fine without statutory limit. Continue reading
In a significant development for companies relating to the Foreign Corrupt Practices Act (FCPA), in late November the U.S. Department of Justice (DOJ) announced a new FCPA Corporate Enforcement Policy (the Enforcement Policy).
The Enforcement Policy is designed to encourage companies to voluntarily disclose misconduct by providing greater transparency concerning the amount of credit the DOJ will give to companies that self-report, fully cooperate and appropriately remediate misconduct. Notably, in announcing the Enforcement Policy, the DOJ highlighted the continued critical role that anti-corruption compliance programs play in its evaluation of eligibility under the Enforcement Policy. Continue reading
This past year marked the 40th anniversary of the U.S. Foreign Corrupt Practices Act (“FCPA”). Since its enactment in 1977, the U.S. Department of Justice (the “DOJ”) has brought approximately 300 FCPA enforcement actions, while the U.S. Securities and Exchange Commission (the “SEC”) has brought approximately 200 cases. This anniversary year, the first year of the Trump administration, demonstrated that the FCPA continues to be a powerful tool in combating corruption abroad and encouraging compliance at global companies.
Below are six key take-aways regarding FCPA enforcement in 2017: Continue reading