Category Archives: UK Liability and Enforcement

Balancing Victim Compensation and Efficiency in Non-Trial Resolutions: A Comparative Perspective from the International Academy of Financial Crime Litigators

by Stéphane Bonifassi, Lincoln Caylor, Grégoire Mangeat, Léon Moubayed, Jonathan Sack, Andrew Stafford K.C., Wolfgang Spoerr, and Thomas Weibel

Photos of authors.

Top left to right: Stéphane Bonifassi, Lincoln Caylor, Grégoire Mangeat, Léon Moubayed. Bottom left to right: Jonathan Sack, Andrew Stafford K.C., Wolfgang Spoerr, and Thomas Weibel. (Photos courtesy of authors)

Introduction

Negotiated settlements for financial crimes offer a practical approach to resolving cases without lengthy trials. However, they pose a complex dilemma: how to balance efficiency with the need for victims to have a meaningful role in the proceeding and achieve adequate victim compensation. Across various jurisdictions, the approaches to non-trial resolutions reflect differing priorities, with some countries leaning towards expediency and others emphasizing victim rights. This is why the International Academy of Financial Crime Litigators published a working paper on the topic. This piece explores the current state of how victims of financial crime are being compensated in non-trial resolutions across different legal jurisdictions. Furthermore, it identifies some of the challenges and trade-offs lawmakers face when trying to infuse an optimal amount of victim involvement into the settlement process, providing suggestions on how victims of financial crime can be better heard and compensated in settlement procedures.

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Former Aide to Madagascan President Sentenced for Soliciting Bribes Under UK Bribery Act

by Pamela Reddy, Robin Spedding, and Matthew Unsworth

Photos of the authors

Left to Right: Pamela Reddy, Robin Spedding, and Matthew Unsworth (photos courtesy of Latham & Watkins LLP)

Sentencing of Romy Andrianarisoa, the first ever foreign public official to be convicted under the UK Bribery Act of 2010, provides important takeaways.

On 10 May 2024, Romy Andrianarisoa was sentenced to three and a half years’ imprisonment for soliciting bribes contrary to Section 2 of the Bribery Act 2010 (Bribery Act). Andrianarisoa, former Chief of Staff to President Andry Rajoelina of Madagascar, requested substantial cash payments in exchange for helping UK-headquartered Gemfields Group Ltd (Gemfields) secure mining rights in the country. Her associate, French national Philippe Tabuteau, was also handed a 27-month sentence for his role in the scheme.

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Cross-Border Implications of the FCA’s Consultation Paper on Publishing Information About the Opening and Progress of Investigations

by Michael A. Asaro, James Joseph Benjamin Jr., Ezra Zahabi, and Joe Hewton

photos of the authors

From left to right: Michael A. Asaro, James Joseph Benjamin Jr., Ezra Zahabi, and Joe Hewton. (Photos courtesy of Akin Gump Strauss Hauer & Feld LLP).

Last month, the United Kingdom Financial Conduct Authority (FCA) announced that it is considering new procedures under which it would publicly identify firms that are under investigation as soon as the investigation has been opened.[1] The consultation period closes on April 30, 2024. (See our recent client alert here). The proposed new approach—which, if adopted, would be a dramatic break from historical practice—would result in public disclosure before any charges have been filed and before the FCA has determined whether the firm actually did anything wrong. In this article, we draw comparisons between the investigation disclosure regimes in the U.K. and the United States. We also provide commentary on the FCA’s proposals.

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Paying Criminal Whistleblowers: DOJ Announces A Program to Pay For Tips, and the SFO Is Considering Doing So Too

by Joshua A. Naftalis, Matt Getz, and Tracey Dovaston

From left to right: Joshua A. Naftalis, Matt Getz, and Tracey Dovaston. (Photos courtesy of Pallas Partners LLP).

In the past two weeks, the U.S. Department of Justice (DOJ) and the U.K. Serious Fraud Office (SFO) each made announcements about paying financial bounties to whistleblowers.  On March 7, 2024, U.S. Deputy Attorney General Lisa Monaco announced a new DOJ whistleblower program that will compensate individual whistleblowers for reporting corporate or financial misconduct previously unknown to DOJ.  This announcement followed a February 13, 2024 speech by SFO Director Nick Ephgrave, who said that he supported the idea of paying whistleblowers.    

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A View from Abroad: Unpacking DOJ’s M&A Safe Harbor Policy, Part II

by Joel M. Cohen, Marietou Diouf, James Hsiao, Francisco Málaga Diéguez, Aleksandra Oziemska, Jean-Pierre Picca, Anneka Randhawa, Jean-Lou Salha, Dr. Daniel Zapf, Dr. Nicolas Rossbrey, and Dr. Tine Schauenburg

Photos of the authors.

Top left to right: Joel M. Cohen, Marietou Diouf, James Hsiao, Francisco Malaga, Aleksandra Oziemska, and Jean-Pierre Picca. Bottom left to right: Anneka Randhawa, Jean-Lou Salha, Daniel Zapf, Dr. Nicolas Rossbrey, and Dr. Tine Schauenburg (Photos courtesy of White & Case LLP)

On October 4, 2023, United States Deputy Attorney General (DAG) Lisa Monaco announced a new Department of Justice (DOJ) Mergers & Acquisitions Safe Harbor policy that encourages companies to self-disclose criminal misconduct discovered by an acquiring company during the acquisition of a target company.  Under the policy, the acquiring party will receive a presumption of criminal declination if it promptly and voluntarily discloses criminal misconduct, cooperates with any ensuing investigation, and engages in appropriate remediation, restitution and disgorgement. While the DOJ has offered little guidance as to what it might expect from a company that self-discloses under the policy, many jurisdictions outside the United States offer corporate self-disclosure and cooperation incentives. This alert analyzes several of those practices in Europe and Asia, and what can be learned from their application. Continue reading →

UK Court Blocks UK ICO Fine and Enforcement Against Clearview

by Olivia R. Lee and Sarah Pearce

From left to right: Olivia R. Lee and Sarah Pearce. (Photos courtesy of Hunton Andrews Kurth LLP)

On October 17, 2023, The First-tier Tribunal of the UK General Regulatory Chamber allowed an appeal by Clearview AI Inc (“Clearview”) against an enforcement notice and fine issued by the UK’s Information Commissioner’s Office (“ICO”).

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FCA Board Focuses on AI

by Stuart Davis, Fiona M. Maclean, Gabriel Lakeman, and Imaan Nazir

Photos of the authors.

From left to right: Stuart Davis, Fiona M. Maclean, Gabriel Lakeman, and Imaan Nazir. (Photos courtesy of Latham & Watkins LLP)

A new publication from the UK’s financial regulator signals to firms that they should take steps to manage risks in the use of AI.

The UK’s Financial Conduct Authority (FCA) has published its latest board minutes highlighting its increasing focus on artificial intelligence (AI), in which it “raised the question of how one could ‘foresee harm’ (under the new Consumer Duty), and also give customers appropriate disclosure, in the context of the operation of AI”. This publication indicates that AI continues to be a key area of attention within the FCA. It also demonstrates that the FCA believes its existing powers and rules already impose substantive requirements on regulated firms considering deploying AI in their services. Continue reading →

UK ICO Publishes Guidance on Workplace Monitoring

by Sarah Pearce and Olivia Lee

From left to right: Sarah Pearce and Olivia Lee. (Photos courtesy of Hunton Andrews Kurth LLP)

On October 3, 2023, the UK Information Commissioner’s Office (“ICO”) published new Guidance on lawful monitoring in the workplace, designed to help employees comply with their obligations under the UK General Data Protection Regulation (“UK GDPR”) and the Data Protection Act 2018 (“DPA”).

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A Game-Changer for UK Corporate Crime Enforcement? Major Expansion of Corporate Criminal Liability Proposed

by Karolos Seeger, Konstantin Bureiko, Aisling Cowell, and Andrew Lee

Photos of the authors

From left to right: Karolos Seeger, Konstantin Bureiko, Aisling Cowell, and Andrew Lee (Photos courtesy of Debevoise & Plimpton LLP)

Recently, the UK government announced a groundbreaking proposal to reform the identification doctrine—the principle used to hold a company liable for criminal offences committed by those who represent its “directing mind and will”.[1]

For a wide range of offences, including bribery, money laundering, sanctions, fraud and false accounting offences, the actions of a “senior manager… acting within the actual or apparent scope of their authority” will be attributable to his or her employer. The draft wording was added to the Economic Crime and Corporate Transparency Bill, which, as part of the government’s focus on overhauling UK economic crime legislation, already includes a new failure to prevent fraud corporate offence.[2]

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UK Introduces New ‘Failure to Prevent Fraud’ Corporate Offence

by Karolos Seeger, Aisling Cowell, and Andrew Lee

Photos of the authors

From left to right: Karolos Seeger, Aisling Cowell, and Andrew Lee (Photos courtesy of Debevoise & Plimpton LLP)

Following confirmation by the UK Government earlier this year that it intended to create a new ‘failure to prevent’ corporate criminal offence, it has now published the much-anticipated draft wording of a failure to prevent fraud offence. This will form part of the Economic Crime and Corporate Transparency Bill (the “ECCT Bill”), which is currently being debated by the House of Lords. Once enacted, the ECCT Bill will be the most important law tackling economic crime since the Bribery Act 2010.[1] It is also the culmination of a long debate about the reform of corporate criminal liability, including a review by the Law Commission completed last year.[2]

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