“Over the last decade, DPAs [Deferred Prosecution Agreements] have become a mainstay of white collar criminal law enforcement,” Lanny Breuer, the head of the U.S. Department of Justice’s Criminal Division, declared on September 13, 2012. Corporate Deferred Prosecution Agreements (DPAs) and Non-Prosecution Agreements (NPAs) have, in Mr. Breuer’s words, ameliorated the “stark choice” that prosecutors faced: either to employ “the blunt instrument of criminal indictment” that he likened to using “a sledgehammer to crack a nut” or to “walk away” and decline prosecution outright. As a consequence, DPAs and NPAs “have had a truly transformative effect on . . . corporate culture across the globe” resulting in “unequivocally[] far greater accountability for corporate wrongdoing–and a sea change in corporate compliance efforts.”
In the time that elapsed since this statement, a new flurry of much-publicized settlement agreements and record-breaking sanctions sometimes reaching billions of dollars seem only to have confirmed the importance of this new trend.
Settlement agreements are now a global phenomenon. Following the U.S. example, other enforcement authorities have also entered similar settlements in foreign bribery cases. In a matter of a few years, non-U.S. companies, including Europeans, have integrated compliance with U.S. laws and regulations on corruption, money-laundering, financial and tax evasion in their inner workings to a surprising extent, for fear of encountering the long arm of U.S. regulators and enforcement authorities. Yet this compliance by global companies to the laws and regulations of another country raises a number of cultural and legal issues for non-U.S. firms. For example, one such issue is the availability of the double jeopardy defense in jurisdictions other than the U.S., which does not afford the protection of double jeopardy under its Supreme Court’s “Dual Sovereignty Doctrine.” Another is the right balance between prosecuting individuals and sanctioning corporations. Equally important, the policing of financial globalization by U.S. laws and regulation has raised concerns in terms of level playing field between U.S. and non-U.S. companies.
In the United States as well, the intensification of these practices has invited questions and challenges. Some federal judges, following the lead of Judge Jed Rakoff, have refused to validate settlement agreements between the S.E.C. and corporations when the terms of the agreement did not provide enough information to determine whether the sanctions were “fair, reasonable, adequate and in the public interest.” A lawsuit recently filed by Better Markets, a non-profit group that promotes the public interest in financial markets, is asking a court to declare the $13 billion deal between J.P. Morgan Chase and the Department of Justice unlawful and issue an injunction to prevent the Department of Justice from enforcing it until it has been approved by a judge. And last January, U.S. senators Elizabeth Warren and Tom Coburn introduced a bipartisan bill that would require government agencies to reveal the details of deals reached with banks and other groups accused of wrongdoing.
The present panel will invite speakers from the U.S. and Europe to bring their different perspectives to bear on a discussion of what is, in effect, a new paradigm for law enforcement – as the practice of DPAs and NPAs continues to develop, how culturally sensitive are reactions to this new type of justice? Are there important ways in which these procedures should be adapted to be universally accepted not only as efficient, but also fair and legitimate tools for policing global business?
In cooperation with:
Washington Foreign Law Society (WFLS), American Society of International Law (ASIL), Institut des Hautes Etudes sur la Justice (IHEJ), Organization for Economic Co-operation and Development (OECD)
Speakers:
- Nicola Bonucci, Director for Legal Affairs of the OECD
- Charles Duross, Partner, Morrison and Foerster, Head of the global anti-corruption practice and former Deputy Chief in the Fraud Section in the Criminal Division of the U.S. Department of Justice
- Antoine Garapon, Secretary General of the Institut des Hautes Etudes sur la Justice
- Dennis Kelleher, CEO Better Markets
- Pierre Servan Schreiber, Head of Skadden Arp’s Paris Office
Moderator: Roderick M. Hills, Partner, Hills, Stern and Morley, Chairman of the Hills Program on Governance at CSIS and Former chairman of the S.E.C.
