Important New Principles Emerge From UK's First-Ever Deferred Prosecution Agreement And US DOJ Declination

Author:Mr Adam Brown, Sion Richards, Hank Bond Walther, Glyn Powell and Samir Kaushik
Profession:Jones Day
 
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The UK's first-ever deferred prosecution agreement ("DPA") was concluded on 30 November 2015. This unprecedented resolution on which Jones Day acted and which also saw the first use of section 7 of the UK Bribery Act—failure to prevent bribery by employees or associated persons—has understandably received widespread media coverage. The reporting to date has focused on the factual background and the novelty of the proceedings, but the matter raises other new and important points which will be relevant to future cases, namely:

The resolution of multijurisdictional investigations; Judicial approval of resolutions; How uncharged third parties are referred to in DPA documents; and Notification to regulators. Resolving Multijurisdictional Investigations Through a Coordinated Resolution

The UK's Serious Fraud Office ("SFO") has been rightly keen to trumpet Sir Brian Leveson's approval of the previously untested DPA regime by way of the historic resolution. According to the Director of the SFO, the DPA "will serve as a template for future agreements". The template should extend beyond the UK since, in a highly noteworthy development, the resolution also saw the US Department of Justice ("DOJ"), which had launched its own inquiry, close its own criminal investigation based on the company's self-disclosure of the underlying conduct to the SFO, cooperation in the UK and the US, and its agreement to resolve the case in the UK. An agreed resolution was also announced on the same day with the US Securities and Exchange Commission ("SEC"). This reflects the increased cooperation between law enforcement agencies and regulators on each side of the Atlantic and beyond. Corporations under investigation for alleged corruption often find themselves the subject of investigations conducted by multiple agencies in numerous jurisdictions. For example, a publicly traded non-US company may be subject to investigation in: (i) its home country; (ii) the country where it is publicly traded; (iii) the country where the alleged bribe was paid; and (iv) any country whose jurisdiction was touched during the scheme to pay the bribe. In certain jurisdictions, this final category is incredibly broad. For example, the US government takes the view that an email in furtherance of an illegal act that passes through the US may be enough to trigger US jurisdiction. Increased collaboration between sovereign enforcement agencies can have benefits for the client if it results in...

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