Almost any conviction of a company, like almost any conviction of an individual, will have an impact on innocent third parties, and the mere existence of such an effect is not enough to prevent the continuation of the company. Therefore, when assessing the relevance of collateral consequences, various factors already discussed, such as the pervasiveness of criminal conduct and the relevance of the company`s compliance programs, should be taken into account in determining the weight to be given to this factor. For example, the balance may tip in favor of corporate law enforcement in situations where the scope of misconduct in a business is widespread and enduring within a department of the business (or distributed in the pockets of the company organization). In such cases, the potential unfairness of the visiting sentence for corporate crimes against shareholders may be much less worrisome if those shareholders have essentially, even unknowingly, benefited from widespread or pervasive criminal activity. Similarly, if the senior management of the company or the shareholders of a company with a narrowholding were involved in or became aware of the fault and the conduct in question was accepted as a form of activity for a longer period, the exclusion may not be considered as a guarantee, but as a direct and quite appropriate consequence of the fault of society. For these and other reasons, cooperation can be a favorable path for government and business. Cooperation benefits the government by allowing prosecutors and federal agents, for example, to avoid lengthy delays that affect their ability to quickly discover and deal with the full extent of widespread corporate crimes. Through the company`s cooperation, the government may be able to reduce tangible losses, limit reputational damage, and preserve assets for repayment. At the same time, cooperation can benefit the company – and, ultimately, shareholders, employees, and other often blameless victims – by allowing the government to focus its investigative resources in ways that speed up the investigation and disrupt the company`s legitimate operations.
In addition, cooperation can benefit the company by offering it the opportunity to obtain recognition for its efforts. Under a DPA, the government will lay charges against a defendant, but agrees not to proceed with those charges. In return, the defendant undertakes to comply with certain requirements or conditions. If the defendant fulfills its share of the bargain, the government agrees to drop the charges. But if the accused rejects and violates the terms of the dpa, the government can sue. A deferred prosecution agreement, or “DPA,” is a mechanism for resolving a case against a company that is essentially an unofficial form of probation. Although they are typically used to settle a criminal case, civil law enforcement agencies such as the SEC have also begun to use them. The requirement that companies must fully cooperate with individuals does not mean that the ministry`s lawyers have to wait for the company to provide information about individual perpetrators and then accept only what the companies offer. Rather, the ministry`s lawyers should proactively investigate individuals at every stage of the process – before, during and after each corporate cooperation. Ministry lawyers should vigorously review all information provided by companies and compare it with the results of their own investigation to ensure that the information provided is truly complete and does not attempt to minimize, exaggerate or otherwise distort the behaviour or role of any person or group of persons. The department`s lawyers should strive to obtain as much information as possible from the company about the persons responsible before resolving the company`s case. In addition, continued cooperation by the Company with respect to individuals may be required after resolution.
If this is the case, the company resolution agreement should include a provision requiring the entity to provide information about all persons materially involved in or responsible for the misconduct and which is sufficiently explicit that failure to provide the information would result in specific consequences, such as . B of the specified sanctions and/or a material breach. Communication between a company (through its officers, employees, directors or agents) and a management consultant that is made to promote a crime or fraud is outside the scope and protection of solicitor-client privilege, subject to established precedents. See United States v. Zolin, 491 U.S. 554, 563 (1989); United States v. BDO Seidman, LLP, 492 F.3d 806, 818 (7. Cir. 2007). Therefore, the Department may duly request such disclosures if they actually exist.
For example, the EPSilon DPA follows the trend of fact-specific resolutions and adds a category for “consumer rights” that is not included in the compliance program requirements of other resolutions. [15] Given the Department of Justice`s assertion that Epsilon employees sold customer data to customers involved in consumer fraud, Epsilon`s EPD requires Epsilon to provide processes to individual customers to request the data of the individual that Epsilon can sell to customers and to require that Epsilon not sell the individual`s data at all. [16] Data protection authorities remain in the spotlight in the UK. On May 4, 2021, the media reported that the SFO (which declined to comment) is dropping a criminal investigation into individuals linked to Airbus SE (“Airbus”), 16 months after Airbus agreed to jointly pay $3.9 billion in fines to French, British and US authorities to resolve foreign bribery and export control fees (as summarized in our 2020 semi-annual update). [218] Similarly, in April 2021, the FSO sued two former executives of Serco Georgrafix Ltd. (“Serco”) ending in a plea of not guilty after revealing that the FSO had failed to disclose evidence to the defense. [219] Serco, a leading provider of outsourced services to governments, entered into an ODA with the FSO in July 2019 and agreed to pay a fine of £19.2 million (approximately $24 million) and reimburse the FSO`s investigation costs of £3.7 million (over $4.6 million) to investigate allegations of fraud and false accounting (as stated in our update). end-of-year day 2019). The Serco case is not the first acquittal in recent years among the charges brought against individuals by the FSO; In fact, the FSO still has to successfully prosecute people under an ODA. [220] This trend could undermine or at least shape the FSO`s efforts to shut down data protection authorities in the future, as it leads companies to question the FSO`s ability to obtain a conviction if they are forced to prove their case in court. According to the doctrine of the Respondeat Superior, a company can be held criminally liable for the illegal actions of its directors, officers, employees and representatives. In order to hold a company accountable for these acts, the government must demonstrate that the shares of the company`s representative (i) were in conformity with its obligations and (ii) should benefit the company at least in part.
In all cases of misconduct by company representatives, prosecutors should not focus on the individuals or the company, but consider both as potential targets. Prosecutors should focus on individual misconduct from the outset when it comes to investigating a company`s misconduct. By focusing on building cases against individual authors, we achieve several goals. First, we are increasing our ability to recognize the full extent of corporate misconduct. Because a company only acts through individuals, studying the behavior of individuals is the most effective and effective way to determine the facts and extent of a company`s misconduct. Second, the focus on individuals increases the likelihood that people with knowledge of the company`s misconduct will be identified and provide information about the people involved at all levels of an organization. Third, we maximize the likelihood that the final solution will include charges against guilty people and not just the company. On April 29, 2021, SAP SE (“SAP”), a German software company, entered into an NPA with the DOJ NSD and agreed to raise $5.14 million. [163] SAP also entered into administrative agreements with the Department of Commerce`s Bureau of Industry and Security and OFAC at the same time. [164] In the voluntary disclosures to these three authorities, SAP acknowledged violations of the Export Administration Regulations and the Iranian Transactions and Sanctions Regulations. [165] Directors and officers of corporations have a fiduciary duty to the shareholders of a corporation (the beneficial owners of the corporation) and have a duty of honest conduct to the investing public and consumers with respect to the corporation`s regulatory submissions and public statements.
A prosecutor`s duty to enforce the law requires investigating and prosecuting criminal misconduct if it is discovered. In carrying out this mission with the care and determination necessary to justify the important public interests discussed above, prosecutors should pay attention to the common cause we share with responsible business leaders who seek to foster trust. .