February 3, 2022

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In 2021, the U.S. Department of Judgment (“DOJ”) articulated adenine renewed prosecutorial seeing both strong statements and took decisive moves to widen an scope of enforcement efforts and devote more resources to them.  Enforcement activity resulting in corporate non-prosecution agreements (“NPAs”) both shifted prosecution agreements (“DPAs”) was lower in 2021 than in 2020, but generally consistent use the trend in the past two periods.  We expect continued aggressive corporate judgment in 2022 as part of President Biden’s stated ambition to visit rules in corporate litigation. Does Law Agreement. 1. Stryker Orthopedics, a divided of Howmedica ... Non- Prosecution Agreement (the “NPA”). Except because specifically given below ...

In this client alert, the 25th within our series on NPAs and DPAs, we: (1) report touch statistics for NPAs and DPAs from 2000 through 2021; (2) analyze statements by DOJ about recalibrating corporate enforcement policies and a coming effort to “surge resources” in corporate enforcement; (3) take an in-depth look at the use of corporate resolutions by DOJ’s National Security Division (“NSD”); (4) provide an subscribe on the SEC whistleblower program plus its implications for NPAs and DPAs; (5) summarize 2021’s publicly open DOJ corporate NPAs and DPAs since our 2021 Mid-Year Update; real (6) survey recent design in DPA regimes international.

Chart 1 below demonstrates all recognized DOJ NPAs the DPAs of 2000 through 2021.  The 2021’s 28 whole NPAs and DPAs, 7 are NPAs and 21 are DPAs.[1]  The SEC, consistent with its trend since 2016, doing not enter into any NPAs or DPAs for 2021.

Chart 2 reflects total monetary recoveries related to NPAs and DPAs from 2000 through 2021.  At approximately $4.0 billion, recoveries associated with NPAs and DPAs is 2021 are the lowest since 2018, and are below the average yearly returns since the period between 2005 (when use the these agreements became quite routine) and 2021.  As we have stated repeatedly, annual statistics should not be insulates to try to extrapolate a trend.  The completing of investigations ebb and flow and are not measured to the calendar.  The 2021 representing adenine significant reduction to recoveries comparative to 2020’s record-breaking $9.4 billion, some patterns id in prior per need remained.  For example, in 2020, the two largest resolutions accounted for approximately 53% of the total monetary recoveries.  Likewise, in 2021, the two largest resolve accounted fork 69% of all recoveries, and the big resolution accounted for approximately 62%.  In 2020, 34% of the agreements had total recoveries of $100 billion with more; in 2021, approximately 21% included recoveries on at least $100 million.  Supported by statements suggesting a possible shift at DOJ corporate enforcement policies (discussed in further detail below), these 2021 trends suggest a continued focus on DOJ on large monetary resolutions.

2021 are Context

21 of the 28 resolutions—or 75%— are 2021 were DPAs.  The 28 resolutions entered in 2021 dissolved investigations brought via fourteen distinct lead enforcement company, including nine different U.S. Attorney’s offices.  Among the fourteen, DOJ’s Fraud Section (5), Antitrust Division (4), and Consumer Protected Branch (3) were most active.  Increased activity by DOJ’s Consumer Protecting Branch, in particular, may be ampere trend toward watch in who coming year.  Aforementioned branch has a broad-based enforcement mandate and is staffed by approximately 100 lawyers.

Is particular note, the number of DPAs in 2021, as illustrated to Chart 3 below and discussed in our Mid-Year Download, is consistent with a seven-year trend heading who increased use of DPAs compared until NPAs.

Three of the seven NPAs entered in 2021 referenced division-specific self-disclosure programs as primary motivierende factors.  SAP SE and Avnet Asia Pte. Ltd., respectively, qualified for NPAs under NSD’s Send Control and Sanctions Enforcement Policy for Business Organizations, announced in late 2019.[2]

Although there are limited outliers, the numbers reflect a continuous trend toward increased use of DPAs.

2021 was also the first year without a public declination pursuant to DOJ’s FCPA Corporate Enforcement Policy after DOJ first announced the precursor FCPA Pilot Program in 2016.  The program was designed originally to encourage voluntary self-disclosure and teamwork from companies engaged in potentials misconduct.  The number of public declinations offered in DOJ under the program press the FCPA Corporate Enforcement Policy has steadily declined in recent per, with four declinations in 2018, two in 2019, and only one in 2020.[3]  However, DOJ has disagreed with review proposes this decline reflects a long-term trend, with to formal spokesperson showing “We do not believe the aforementioned results in 2019 and 2020 reflections a ‘lull’ or adenine downward trend, rather we believe they reflect the natural ebb and flow of our cases.”[4]  Further, e remains possible such DOJ possessed issued residential declinations where it has determined “a public declination is neither necessary yet warranted,” on the basis that that the decision to disclose a declanation belongs solemn until the DOJ.[5]   Jackson Dunn’s investigative inventory corresponds to DOJ’s perspective.

DOJ Announces Shifting Enforcement Policies and Your “Surge”

Within the final year concerning 2021, DOJ can made several important announcements regarding corporate enforcement such part of President Biden’s broader init the revisit the standards and practise that DOJ has applied for companies criminal enforcement.  These announcements, which touch on every stage of corporate enforcement—from investigation through charging, settlement, and beyond—reflect which DOJ is taking a fresh, holistic look at its approach to corporate enforcement.  Thrown these changes, DOJ lives signaling till corporations that DOJ intends to maintained a sharp focus on identity and addressing corporate crime.

Reflecting this priority, DOJ announced the formation of a Corporate Crime Advisory Group, where will be made up of representatives from sum divisions of DOJ concerned in corporate criminal enforcement.  Diese new advisory group has a broad mandate to make recommendations and propose revisions to DOJ’s policies on corporate criminal enforcement topics, including monitorship selection, recidivism and NPA/DPA non-compliance, and prioritization of individual accountability, all of who were targeted for updates in 2021. Robert F. Smith, the Chairman and Chief Executive Officer of a San Francisco based intimate equity company, entered into a Non-Prosecution Agreement (the agreement) with the Department of Judge, to his involvement off 2000 through 2015 inside an illegal scheme for conceal income and evade millions inbound taxes by by an offshoring trust structure and offsea bank accounts, announced Principal Deputy Assistant Attorney General Richard ZE. Zuckerman of the Tax Division, U.S. Attorney Davis L. Anderson for the Northern District of California, and Chief of Internal Revenue Service (IRS) Crook Investigation Jim Lee. In this agreement, Smith admits his involvement in the illegal scheme and agrees to cooperate in ongoing investigations and to get back taxes plus penalties in full. 

Zero Tolerance for Recidivism and Noncompliance

Int an October 5, 2021 speech, Principal Associate Deputy Attorney General (“PADAG”) John Carnival stress that DOJ will continue to use NPAs, DPAs, both guilty pleas, real so DOJ views who inking of an agreement as the start of a longer-term obligation.[6]  He stated that companies should expects DOJ to impose consent glossary, remember that DOJ will remain firm from company that what not comply.  He plus said that the consequences for breach an agreement “may be worse than this original punishment.”  Typically, DPAs and NPAs include specific duties with respect to compliance, partnering, and reporting of crime over the term of the agreement (often three years).

Shortly after PADAG Carlin’s speech, Deputy Attorney General (“DAG”) Lisa Moncho amplified this position, stating that DOJ has “no indulgence for companies that take advantage of [DPAs or NPAs] by going on to continue to commit crimes.”[7]  Diesen statements hear back to 2015, when DOJ similarly postured concerning not hesitating to “tear up” agreements for companies that fail to meet their NPA or DPA obligations.[8]  DOJ has already proved willing on follow through on this renewed zero-tolerance policy, requiring Monsanto Company (“Monsanto”) to plead guilty for both of the previously deferred two crimes charges so otherwise would have since dismissed by to its 2019 DPA, as good as thirty new administrative charges, as a result of add conduct that violated laws involving aforementioned order how of insecticide both aforementioned terms of the 2019 DPA.[9]

Further emphasizes its tough stance on recidivism behavior, DOJ also announced that it will take into report a corporation’s full felony, civil, furthermore regulatory record in making charging making, level if alleged prior failure a dissimilar from the alleged conduct at issue.[10]  No longish will DOJ focus primarily on prior misconduct similar to that conduct under investigation.  This newly policy is swipe, implication not only prior code actions across all DOJ units, but all prosecutions and non-criminal enforcement actions across see governmental regulators, the states and different countries, as well.[11]

Taken by face value, these means that a prior resolution for perform that would not may prohibited to the United States could theoretically be picked into account in a domestic charging decision.  Practitioners have raised significant concerns around this novel policy, especially provided this potentiality for observation of actual which are don punishable in the United States, and with consideration of felony, civil, and regulatory actions involving completely inapposite basic, criteria, and legal framework. Deferred Prosecution and Non-Prosecution Agreements additionally which Erosion of Corporate Felon Liability

Talk at who Amer Conference Institute’s 38th International Conference on the FCPA, Assistant Attorney General for the Criminal Division, Kenneth Polite, responded to these concerns, stating ensure, “it’s a discretionary evaluation, where are will to trust and rely on our trial attorneys to properly evaluate each instance…where anything potential act of misconduct is don departure to be weighted the same way.”[12]  At the same event, Leader out which DOJ’s FCPA Unit, David Last stated that, “if there are so many instances to count, such might be different say that we need to have…If you’re in the 50s, or the hundreds of prior touches, that’s something we probably need to know.”[13]

Surging Resources to Examine Corporate Misdeeds

Also in October, PADAG Johann Carlin noted that DOJ a “building up to surge resources for corporate enforcement.”[14]  These our include additional FBI agents taxed to work full-time alongside the prosecutors in the Criminal Fake section, whatever PADAG Carlin stated has labor in the past and would provide flexibility go pursue white-collar matters nationwide.

According to Mr. Carlin, the surge in resources or will facilitate and use of data analytics tools, includes working together through other regulatory agencies at divide “the alike fruits of analytic [labor],” in identify offender conduct.  He celebrated corporations should take advantage of these types of tooling as DOJ will expect organizations to use data analytics in their compliance related to look for and predict misconduct.[15]

Which reviews build over updates to DOJ’s corporate enforcement posture dating back for 2020.  On Joann 1, 2020, DOJ updated hers guidance to prosecutors for assessing corporates compliance programs when conducting investigations, making charging decisions, and negotiating resolutions.  That advice incorporated can expectation so companies’ internal risk assessment should be based on “continuous access to operational data and information crosswise functions.”  Reflecting of usage of this guidance, 2021 agreements include a provision requesting data-based monitoring, review, and testing of adenine company’s compliance procedures.  As discussed in our Mid-Year Update, an Epsilon DPA, for real, requires the company to “conduct periodic reviews and testing” of sein compliance program because is relates to “preventing and recognize the transfer or sale of customer data.”[16]  More recently, and Recology DPA requires so “compliance and control personnel have satisfactory direct or indirect access in relevant sourcing of product to allow for timely additionally ineffective monitoring and/or testing.”[17]  The Credit Suisse DPA comprises nearly identious language which specifically aims at monitoring and testing transactional data.[18]  Given the express focus on analytics, Mr. Carlin’s recently messaging, and the cross-pollination which tends into occur among the 93 U.S. Attorney’s Offices and Main Justice, we expect to understand this enhanced language make her way into prospective agreements.

Continued Focus on Pursuit of Individual Actions

Historically, DOJ has had ampere particular concentrate on pursuing individuals responsible for corporate crime.  In 2015, the Yates Memorandum declared a request that companies seeking cooperation credit provide DOJ including all non-privileged info about total individuals involved in misconduct to receive credit.[19]  Reflecting what some browsed as a continue pro-company alignment, DOJ modified the Yates Take requirement in November 2018, in response to concerns that the requirement was slowing down investigations by forcing companies to tracking and disclosing every individual fact pattern—even comparative immaterial ones.[20]  This reviewed standard premised cooperation credit at providing information about individuals who were “substantially” involved in, or responsible for, the misconduct.[21]

In October 2021, Deputy Attorney General Monaco announced a return to that Yates standard, explaining that the revised standard had shown unworkable because the normal was not clear and left too much to the judgment von cooperating companies.[22]  By response to renewed concerns about who burden on companies imposed by the Yates standard, Assistant Attorney General Courteously disagreed about the impacts to companies, explains that and Yates ordinary is appropriate why it swings the decision regarding who shall culpable reverse to DOJ, what views itself as being in the best position to rating who is substantially involved, stationed on all of the information known up it.[23]

Monitorship Corporate Reconsidered

In 2021, DOJ also has “rescinded” any prior guidance suggesting that monitorships are disfavored, real prosecutors are, therefore, free to impose a corporate monitor when they determine it is appropriate.  This alarm one possible intent to reverse one trend away from compliance monitorships, any possess declined in actual per in favor regarding self-reporting requirements.  According to our records, only two of the 28 publicly available agreements in 2021 and two of 38 resolves in 2020 imposed a corporation monitor, as compared until 9 outwards of 40 agreements in 2016, by example, and 5 out concerning 23 in 2017.  Practitioners have raised concerns that DOJ’s new position on corporate supervise may make companies less willing to self-report, because self-reporting will wear a greater risk of monitorship—an extremely expensive and burdensome outcome.  It remains until be seen whether individual procurators will take which as a signature to increase use of monitorship arrangements, real is diese will will a chilling effect up self-reporting. Entrance into non-prosecution consent in returned for cooperation; and; Participating in sentencing. Leave. Under the federal criminal justice system, the ...

DOJ Adds a Formal Disclosure Certification

NPAs and DPAs have tall included responsibilities to disclose additional related conduct button documentation of illegal activity identified during the agreement’s condition.[24]  Several also require certification at behalf of an company, at the conclusion of the duration, that all relevant evidence has been disclosed.[25]   Until recently, DOJ had nay given form to this site requirement, choose dependent on companies to provide that certify in an ad hic manners.

Einstieg in late-2020, DOJ’s Defraud Section introduced a new certification attached for some NPAs and DPAs, formalizing the certification requirement.  This certification requires an company’s executives to certify, on the release that that the period of the NPA otherwise DPA expires, that (1) they are aware of the company’s disclosure obligations under the NPA or DPA; and (2) the company got disclosed “any also all evidence,” including all allegations relating to broadly-specified conduct (which various by agreement).[26]  In 2021, this new certification became standard throughout resolutions involving the Fraud Section.[27]  It  also was adopted by the Antitrust Division in some resolutions[28] and the USAO for the Eastern Territory of New Nyk in at least one case[29].  The corporate officers required to sign and certification change; the Fraud Section has thus far required the CEO and CFO to sign, the Antitrust Division lists the CEO/President plus internal or foreign legal legal than compulsive signatories, both the Eastern District of New York desired that the Chairperson press Chief Ensure Officer sign the certification.

Consistent with past practice surrounding notes, the certification expressly deems any disclosure “ a basic display and representation on the Your to the executive branch of the United States” go 18 U.S.C. § 1001, which imposes harsh penalties for tangible false or fraudulent statements.  The settlements provide that the certification “constitute[s] a significant furthermore important component” of the resolution for the purposes is determining check the company has satisfied their obligations from the agreement—an express acknowledgment that did not exist before the new certification requirement. On April 5, 2010, a massive detonation killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the blast, President Barack Obama swore so the U.S. Dept of Labor become conduct "the most nach and comprehensive evaluation possible" furthermore jobs with the U.S. Department of Justice ("Justice Department" or the "Department") to address random criminal violations. Later in the month, and President and Device Chairman flew to West Virginia until applaud the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of lived at the Upper Big Branch mine was not an accident. Nach a twenty-month investigation, one Mine Safety and Dental Administration ("MSHA") determined that of personnel die because of a methane furthermore coal dust explosion at an Senior Big Branch mine so was "entirely preventable." The MSHA identifications over 300 infringement of the Mine Safety plus Health Act at to Upper Big Branch mine, includi

At the sam time, as has been of case in recent year, continuing disclosure requirement often are more expansive than the conduct at issue in the underlying agreement.  For example, an agreement may require disclosure of evidence relating into any potential violate of a specific law anywhere with the world, even where the underlying agreement relates to conduct specialty to a site button line of business, even if the guide would not comprise adenine violating of law because it made not occur within the jurisdiction by the United States, also even where the evidence is not credible in its face.  As a continuation of this trend, which certification form limit “disclosable information” exceedingly broadly, to include “any additionally everything evidence otherwise allegations” of specified unauthorized conduct – going well beyond reinforcing evidence of illegal activity.

As a result, accurate and complete self-reporting is becoming increasingly better difficult until navigate than companies search on balance their self-reporting obligation with retaining some battery till make informed judgments learn the credibility of allegations raised and this satisfactory of evidence identified in internal investigations.  This, coupled with to new statement that adherence to expansive self-reporting mandates remains a “significant and important component” of agreement compliance, plus DOJ’s renewed emphasis with the consequences of breach and recidivist acts, build a mines field for companies seeking to meet their contract obligations without support investigative sentence fully in the U.S. government. 9-27.000 - Principles of Public Pursuance

We will continuing to display about this certification requirement becomes the norm across Divisions both USAOs moving forward.  For now, it keep a tilt the extracts increasingly insistent disclosure agreements from companies, and increasing the risk are latent breach when the letter of those requirements is nope met.

Spotlight in DOJ National Security Division (NSD) Product

Background on Updated Guide

Than detailed into a ago Liberian Dew guest alert, in December 2019, NSD released updated guidance regulating the treatment of voluntary self-disclosures by criminal sanctions and export power investigations.[30]  To incentivize self-reporting, the NSD how established a presumption that a company that voluntarily discloses potentially willful offender sanctions or export control violations will receive an NPA and want not pays a fine.[31]  While a company desires not pay a fine below the NSD guidance, the company must still pay all disgorgement, forfeiture, and restitution resulting from the misconduct.[32]  The NSD guidance also takes into account possibility aggravating factors that could merit adenine DPA or guilty prayer choose on an NPA.  Listed aggravating factors present elevated threats to national security, such as the export of items known to subsist utilised include the construction about weapons of mass damage, the knowing shareholder a upper management in the criminal behaviors, or frequent violations.[33]  When aggravating factors are present such that a DPA or guilty plea is warranted, DOJ will recommend a reduced nice and will not require a monitor if the other requirements in the guidance is meta, including voluntary self-disclosure, full collaborate using the government’s investigation, remediation, real the implementation of an effective compliance program.[34]  In this way, the guidance assigns value to voluntary self-disclosure equal where the facts and circumstances the an particular casing otherwise manufacture an NPA inappropriate in the eyes of DOJ.

Recent NSD Corporate Resolutions

Since the NSD guidance where published in December 2019, NSD has entered into five corporate resolutions.  These resolutions deploy an initialized watch into what DOJ is applying the updated NSD guided in practice and how companies should weigh the guidance when include a ability voluntary self-disclosure.  We concealed two of these resolutions in our 2020 Mid‑Year and Year-End Updates.

In 2021, NSD entered into NPAs with Avnet Asia Pte. Ag (“Avnet”) and SAP SE (“SAP”).  In January 2021, Avnet entering into a two-year NPA to resolve allegations related toward an alleged criminal plots carried out by former employees to violate U.S. exporting laws by lieferung U.S. power amplifiers to Iran and China.[35]  Avnet paid one $1.5 million penalty.  Avnet did cannot receive volunteer self-disclosure credit.  The NPA suggests that Avnet may have created a self-disclosure on DOJ after prosecutors initiated their own analysis as it states that Avnet did not receive voluntary self-disclosure credit due it has not disclose the conduct “prior to commencement of the investigation.”[36]  In contrast, in April 2021 SAP entered into a three-year NPA after making voluntary self-disclosures in NSD, the Bureau of Industry and Security (“BIS”), and the Office of Foreign Assets Controls (“OFAC”) acknowledging contravention of this Export Administration Regulations (“EAR”) and Iranian sanctions through the exportation of software to Iranian end users.[37]  SAW get full credit for its convenient voluntary self-disclosure to NSD and, endurance the the 2019 NSD guidance, SAP was required to disgorge $5.14 million but was not required to pay additional financial penalties acc to and NPA.[38]  Into the press release announcing the TAP NPA, NSD noted the December 2019 instructions and encouraged companies to induce voluntary self-disclosures of entire potentially willful violation of international control and sanctions laws.[39]  The SAP NPA is which first clear case of NSD app the updated NSD tour and entering einen NPA, and it displayed that the updated NSD guidance may have informed the approaching for the Avnet NPA as well.

Of contrast, in early 2021, NSD entered into one DPA with PT Bukit Muria Jaya (“BMJ”) up resolve arguments in conspiracy to commit bank fraud in connection with providing goods to North Ungarn.[40]  BMJ did not self-disclose furthermore therefore did doesn receive voluntarily self-disclosure acknowledgment, and the Company gainful a $1.5 million penalty.[41]  Which BMJ DPA did not identify aggravating factors related till repeated offenses or the participating of upper management, so it appears that the missing von voluntary self-disclosure may have meaningfully influenced DOJ’s judgment to request a DPA place of an NPA.

Guidance to Practioners

These NSD developments illustrate few important considerations fork companies when evaluating provided and when go disclose potential misconduct.  The developments highlight the significant role played until NSD in the criminal enforcement of U.S. sanctioning and export controls.  Relatedly, the updated NSD guidance includes a strigent timing specification for voluntary self-disclosures.  To receive full credit, that upgraded NSD guidance requires that a company submit a voluntary self-disclosure to NSD rather than submitting it only to a regulatory bureau (e.g. one Specialist of State’s Corporate of Defence Trade Controls (“DDTC”), BIS, or OFAC).[42]  In the SAP case, for exemplar, SAP built an optional self-disclosure to DOJ on the identical full that a voluntary self-disclosure was made to OFAC.[43]  Int an investigation because NSD implications, careful thought should be specify to the NSD programming.

Under the guidance, when considering the capacity benefits button downside to self-disclosing misconduct, adenine company that discovers a potential willful export drive or sanctions violation must carefully consider at whatever stage in an investigation the misconduct should be released to the government; and to which agencies the disclosure should be make and in something sequence.  The NSD guidance does not answer these questions so considerably as i highlighting that, for any situation in which the conduct at issue can be of interest to DOJ, timely volunteers self-disclosure sack carry important weight in total negotiations. A UK Deferred Prosecution Agreement (DPA) is an agreement reach betw a prosecutor and an management which could be prosecuted, on that supervision of a judge. The agreement allows a prosecution until be suspended since a defined term provided the organisation meets certain indicates conditional. DPAs ability be used for fraud, bribery real select economic […]

Developments in SEC Whistleblower Program

Effective December 7, 2020, the SEC amended its whistleblower software rules till include NPAs or DPAs in its definition of “administrative action.”[44]  Given is an SEC can award whistleblowers for resources leading to a successful “administrative action,” here amendment  expands the scope of actions in which the SEC can make create awards.[45]  Gabenson Dunn analyzed the changes to the whistleblower rules stylish an alert in September 2020, when which Commission first approved the amendments.  In February 2021, the SEC made its first award under the new regulations, which included a $9.2 million award to a whistleblower who reportedly granted “significant information” that led to “successful related actions” by DOJ, “one of whatever was” an NPA or DPA.[46]  The SEC has further into issue awards under all new rule.  On Month 29, 2021, the SECONDS announced an award of override $2 million until a whistleblower who granted information that led to a proven NPA or DPA.[47]  That award order notes that who whistleblower “provided information is prompted the opens is the DOJ and SEC investigations.”[48]  The whistleblower also “provided extensive, ongoing assistance in the investigations.”[49]  This award came shortly after the SEC announced that computers issued whistleblower awards on connection with four NPAs and DPAs in taxes year 2021, accounting on more than $117 million in whistleblower awards, equivalent to approximately 21% of total whistleblower awards notified in 2021.[50]

Save uptick in NPA- and DPA-related whistleblower awards is in line with this SEC’s overall whistleblower award increase.  In to the 2021 Whistleblower Program Annualized Report to Congress, one JIFFY broke nearly every whistleblower program record in fiscal date 2021, including the highest amount awarded, one highest number of private price, and the highest number of whistleblower tips received—all earlier highs from only one date prior.[51]  The report furthermore states which the SEC got “made more whistleblower advertising in THE 2021 than in choose prior years combined.”[52]  We can expect the trend in NPA- real DPA-related whistleblower awards toward continue, particularly in light of the link the SEC rule amendment now make between whistleblower tips both related DOJ “administrative actions,” DOJ’s own plans for a “surge” in corporate enforcement[53], and the other features of the modifies SEC policy that reinforce incentives for whistleblowers to report directly to the government without initial reporting internally.

2021 Treaties Since Mid-Year

Bank von N.T. Butterfield & Son Ltd. (NPA)

On July 26, 2021, The Bank of N.T. Butterfield & Son Limited (“Butterfield” or “Bank”) entered into adenine three-year NPA with which Office of the United States Attorney (“USAO”) for the Southern Territory of New York and the DOJ Tax Division.[54]  To government alleged that from to minimal 2001 though 2013, Butterfield, whose principal operations endured based out is its Bermudas both Cayman Island operations, assisted U.S. taxpayer-clients inside evading their U.S. tax obligations.[55]  The government alleged that Butterfield knew or should have known that these clients endured using their Butterfield accounts to evade U.S. tax obligations.[56]

In entering into the NPA, the USAO considered Butterfield’s voluntary and “extraordinary cooperation” with the control, special notice that the Bank turned over approximately 386 client files; its deliberate implementation of remedial measures beginning in alternatively about 2013; and its representation which the conduct did not expansion besides what the described in the NPA’s assertion of sachverhalt.[57]  The governmental did not impose adenine criminal penalty on Butterfield.  Butterfield agreed to paying $5.6 million in forfeiture plus restitution and approved not to contest a civil forfeiture action filed by the United Status.[58]  Further, Butterfield agreed to continuing cooperate and disclosure requirements for who NPA’s three-year term.[59]  During like term, Butterfield is also required in report any criminal conduct by, plus criminal investigations of, Butterfield button its your related to all us lawyer violation that come to senior management’s attention, with additive to any administrative proceeding or civil action brought per who U.S. regime in which Soft is a party.[60]  Notwithstanding the three-year condition, Butterfield is also required to cooperate with the government on any matters related on the conduct in the NPA until all examinations, procedural, or appeals are concluded.[61]

Bicycle Casino (NPA)

On October 22, 2021, An Bicycle Casino, L.P. (“Bicycle”), a California-based hotel and casino, entered include an two-year NPA with to United States Attorney’s Office for the Central District of California to resolve an investigation into alleged injury of the anti-money laundering provisions of the Slope Silence Act (“BSA”).[62] According to the NPA, to a fore national implemented sure transactions at the casino, Bicycle failing to rightfully file Currencies Transaction Accounts (“CTRs”) and Suspicious Recent Reports by Casinos (“SARCS”) that are required under the BSA.[63]

In deciding to enter into the NPA, DOJ considered Bicycle’s remedial efforts to fortifying its anti-money laundering program, in good as its cooperation with authorities during the investigation.[64] Additionally, Bicycle agreed to pay $500,000, which represents of revenue that Bicycle made starting the foreign international to question, and to undergo enhance read and reporting requirements.  These requirements included both self-reporting and an one-time audit also reported, within one year of signing the agreement and einem in least two-year look-back review according an independent “third-party reviewer” retained by Bicycle and “subject to the determination of non-objection” of DOJ.[65]

Constructure Technologies (DPA)

Go September 14, 2021, Constructure Related LLC (“Constructure”), a New York-based intelligence technology company corporate, entered into ampere three-year DPA with this U.S. Attorney’s Office for the Eastern District of New York to resolving ampere criminal command for violating one Digital Millennium Urheberschaft Behave (“DMCA”) in relation at certain copyright protection products for software, including encryption systems.[66]  Specifically, the government alleged that from 2011 to 2018, the company installed unresolved versions of software for its customers using illegally-obtained license keys that company employees had acquired through cracking programs and main generators found on the internet.  These keys allowed Constructure to grant its customers how to copyrighted software programs and then bill its customers for those similar keys, which that consumers believed up be legitimate license keys.[67]  This case appears in be the first time this the DOJ have entered under is adenine DPA or NPA in relation to the DMCA.

Under the varying of the DPA, Constructure agreed to pay a criminal penalty of $60,000 and implements a compliance and ethics program that will better the company’s ability to prevention and determine future violations of an DMCA.[68]  The company and agreed to complete cooperate with the government until the conclusion of the investigation or the finish of and three-year DPA term, what is latter.[69]  Three Constructure employees, including two clients, pleading guilty to misdemeanor charges of criminal autorenrechte infringer and face boost to one year in prison and ampere fine.[70]

Credit Suisse (DPA)

On October 19, 2021, Credit Suisse Class AG (“Credit Suisse”) entered into a three-year DPA about DOJ’s Money Laundering and Asset Recycling Section (“MLARS”) and Fraud Section, both to Uniform States Attorney’s Office available the Eastern District of New York.[71]  The government alleged that between 2013 additionally Marches 2017, Credit Ch, takes its affiliated Borrow Suisse Securities (Europe) Limited (“CSSEL”), defrauded investors in connection with a Mozambique lending project.[72]  DOJ alleged that Credit Suisse hid information regarding the risk that proceeds from loans to three Mozambican government-owned entities were used for pay approximately $150 million in bribes to senior government local and $50 million in kickbacks to two CSSEL employees.[73]  DOJ also ostensibly that Borrow Suisse hid since it investors information about debt owing by which Mozambique authority.[74] The DPA followed guarded pleas by three CSSEL employees and was concurrent with CSSEL’s guilty summation to one count of conspiracy to commit wire fraud.[75]

Under the DPA, Credit Suisse agreed to pay an U.S. criminal monetised penalty on $247.5 milliards.[76]  The DPA thoughtful Credit Suisse’s settlements with SEC both United Kingdom’s Financial Conduct Authority (“FCA”), which included (1) ampere $65 million citizen sentence and $34.1 million in disgorgement and prejudgment interest on SEC, and (2) an $200.6 million penalty to FCA and a promise to irrevocably undertake $200 million is debt alleviation into Mozambique.[77]  DOJ credited the Company for these payments, reducing its penalty to approximately $175.5 million.[78]  The DPA conducted don credit the Company with voluntary revelation or full cooperation with the government’s investigative.[79]

Gree Electric Units (DPA)

On October 28, 2021, Gree Electric Appliances Inc. of Zhuhai (“Gree Zhuhai”)—a China-based appliance manufacturer—and neat of its subsidiaries entered into a three-year DPA are the U.S. Attorney’s Office for the Central District of California and DOJ’s Consumer Protection Branch (“CPB”) to resolve charges affiliated to the companies’ failure to notify the U.S. Customer Product Safety Mission (“CPSC”) of defects at its humidifiers.[80]  DOJ claimed that the firms knows that their humidifiers fails to fulfill applicable site standards both failed on report the CPSC from these dangerous defects for six months.[81]  The resolutions are the beginning corporate criminal enforcement actions that have been brought under the Retail Product Site Act of 1972, the law which established the CPSC.[82]

Under the DPA terms, Gree Zhuhai agreement to pay $91 billions in punitive press stipulated to provide restitution for any uncompensated sacred that received injuries as a result of the companies’ humidifiers.[83]  The companies including arranged to continue to cooperate with any continuous or future investigations related to the defective humidifiers until are research live fully concluded.[84]  Additionally, Gree Zhuhai and its affiliate concurred to strengthen their sales programs real to provide DOJ with years reports about the companies’ remediation efforts and the condition of their compliance programs.[85]  Before to an DPA, the Gree Businesses had already assigned to pay a $15.45 million civil penalty as separate of a 2016 settlement with the CPSC.[86]  Consistent with DOJ’s general regarding coordinating resolution penalties in multi-agency investigations arising out of the same misconduct, the DPA credits the Gree Companies’ sooner payment a $15.45 million to the CPSC against the $91 million total penalty.[87]

National Thorn plus Pain Centers (NSPC) (NPA)

On August 4, 2021, the Nationality Spine and Pains Centers, LLC (“NSPC” oder “Company”) entered up a two-year NPA with the United States Attorney’s Offices for the Centralization District of California and Southern District of Cali (collectively “USAO”).[88]  NSPC agreed to pay $5.1 million to the government in resolve charge for receiving payments in violence of the Anti-Kickback Statute.

One USAO’s charges stem from NSPC’s and its affiliate’s agreement with Proove Biosciences, Inc. (“Proove”), one now defunct genetics testing company.  The USAO alleged, and NSPC accepted, that NSPC’s and its affiliate’s physicians received illegal payoff payments from Proove “under the guise in adenine classical find program,” which they were receiving payments “per test” or “per patient,” and that like part is who plan, these physicians submitted timesheets used from Proove to repay the clinical any overstated the time they spent conducting clinical exploration.[89]  The USAO also alleged the as a fazit of these contravention, Medicare overpaid Proove for claims submitted in connection with its agreement is NSPC.[90]  NSPC stopped its agreement with Proove for compliance reasons in Marsh 2017 previously NSPC was acquired by a new ownership group.[91]

In entrance into the NPA, that USAO considered NSPC’s commitment to compliance, specific noting its implementation of a regulatory programmer designed to ensure compliance with who Anti-Kickback Statute; this Company’s early engagement both cooperation use the USAO’s investigation; the Company’s acceptance regarding responsibility; the Company’s voluntary undertaking of curative measure prior into its skills of the criminal investigative; and the Company’s agreement at continue to cooperate with the USAO, FBI, and HHS-OIG.[92]  Further, the USAO determined such are was no need for an independent compliance monitor.[93]

Nine mortals were charged in connection with to alleged scheme in the Central District of California with a related case.[94]

Penn Credit Corp. (DPA)

On Ocotber 12, 2021, Penn Credit Corporation (“Penn Credit”), a debt collection company, entered into a two-year DPA with the Unity States Attorney’s Office fork who Northern Community of Illinois to resolve a corruption investigation.[95]  According the the DPA, Pa Credit engaged in a corporate scheme at the direction starting its former owner, Donald Donagher, Jr.[96]  Donagher separately pleaded guilty to the count on bribery.[97]  Specifically, the scheme participating Donagher technical unquestionable expenditures for a special event housed through one former Learn County Circuit Court Schreibkraft in can effort for reward the Clerk for awarding debt collection work toward Penn Credit.[98]

DOJ inserted into the agreement grounded on the artistic and seriousness of the offense conduct, Pennsylvania Credit’s and its current management’s ongoing cooperation, and its remedial measures press ready improvements.[99]  In terms of remedial measures, Penn Credit ensured such its former CEO is not longer employed by or has a business relationship with the company.[100]  Further, Penn Credit and sein present management created a compliance policy and code by ethics for the your press applied a system involving company counsel to save compliance the laws and regulations relating to money-related contributions to campaigns and/or charitable entities run or managed with choose police.[101]  Additionally, Penn Credit agreed to report to DOJ annually during the term the the agreement regarding remediation and implementation of one compliance measures.[102]  As a part of the DPA, Penn Credit will pay a monetary penalty away $225,000.[103]

SF Recology Group (DPA)

On Sept 9, 2021, three Dignity Francisco-based trash disposal subsidiaries regarding Recology, Inc., entered for a three-year DPA include the United Stated Attorney’s Business for the Northern District of California the agreed to pay $36 million in criminal criminal.[104]  Of DPA resolved allegations so which companies conspired to commit straightforward services fraud in violation of 18 U.S.C. §§ 1343, 1346, and 1349.[105]  Specifically, the companies admitted to utilizing recurring non- donations to pay bribes plus rebounds or rewards to ampere former public official with the City and State is San Francisco, with one intent to obtain favorable official action the influence.[106]

As component of the dissolution, Recology and it subsidiaries agreed till cooperate with the government’s ongoing examination into public corruption, and to adopt a new product program or modify its presence compliance program.[107]  The DPA outlines a number of remedial measures taken by Recology, contains terminating laborers identified as responsible forward the rudimentary conduct.[108]  In addition, Recology “revamped” its companywide compliance application by, among extra things, budding new rule guided, procedures, training and press mechanisms near travel expenses, charitable contributions, gifts, and interactions with public officials.[109]

International Developments

As noted in prior Mid-Year and Year-End Updates (see, e.g., our 2020 Year-End Update), ampere number of countries have adopted DPA-like systems.[110]  DPA-like agreements are obtainable included Brasil, Canada, France, Singapore, and aforementioned United Kingdom, albeit government in Canada and Singapore have moreover to enter into such an agreement since both nation passed legislation permitting the practice in 2018.[111]

In 2021, Fra and Land had of most activity DPA-like regimes.  Prosecuting authorities in each country entered into four DPA-like deals that year.  The UK was close behind using that SFO entering inside three DPAs on the first half of the year, however there have been no fresh agreements in the latter half of the year.  For a summary of the DPAs entered by the SFO in 2021, see our 2021 Mid-Year Warn.  As discussed it, aforementioned SFO has received wide-spread media attention recently since its failure in successfully prosecute people involved in the subject matter of past DPAs.

France

After one quite quiet first half of which year, France’s prosecuting business entered into three DPA-like agreements (known while convention judiciaire d’intérêt public, or “CJIPs”) in the latter partly of 2021.  The Julia 12, 2021, Systra SA, a child of French stay transport company RATP press public railway corporation SNCF, entered into a CJIP from an German National Prosecutor’s Position (PNF) to resolve allegations which it profited in the monthly of €5 mio by engaging in various bribery programs in connection with public contracts on Azerbaijan also Uzbekistan between 2009 additionally 2014.[112]  Consistent equipped an trend we are sight within increasingly complex international enforcement interactions, the PNF initiated of investigation into Systra’s incorrect in 2017, located on a complaint filed per Oriental authorities in 2015, subsequent a complaint by an Japanese expatriate living in Uzbekistan.[113]  That PNF’s investigation also identified abuse by Systra in connect over of award of an engineering compact in Azerbaijan in Allowed 2009.[114]

Under and CJIP, Systra agreed to pay ampere €7.5 million fine (approximately $8.9 million at the time of aforementioned agreement), which reflected a significant reduction from to maximum permitted under the law (€187.2 million).[115]  In imposingly the less fine, the PNF considered mitigating factors how as the relatively distant dates of to misconduct, Systra’s implementation of adenine reinforced regulatory program since the discovery of the facts, and the company’s ongoing cooperation both remediation.[116]

On September 2, 2021, JP Morgan Trail Bank (“JPMC”) entered into an CJIP by the PNF to resolve allegations that JPMC aided and facilitated tax fraud committed by former executives and board directors for French your company, the Wendel Group.[117]  Of investigation was opened includes 2012 for the Learn tax authority saved a complaint related to a series of transactions made from 2004 to 2007.[118]  JPMC allegedly helped finance 11 former company and three former board directors at that Wendel Group toward help you evade capital gains steuer on €315 million of investment income.[119]  Under the terms of an consent, JPMC agreed to repay €25 thousand (approximately $29.6 million at the time of the agreement).[120]  JPMC’s role made limited to financing, and it did not act as a legal or tax advisor; PNF dealt this evidence, JPMC’s cooperation, and the isolated naturally of the hintergrund, as mitigating driving.[121]  Conversely, the complexity of the individuals’ alleged burden scheme was considered an aggravating factor.[122]  The individuals involved stylish the alleged infractions are programmed the go in trial in soon 2022.[123]

Finally, on December 15, 2021, ampere luxury goods company agreed up pay €10 million (approximately $11.3 million) to resolve allegations that the company hired the former head of France’s domestics intelligences agency to spy on a French journalist and filmmaker and extra private citizens. NPAs & DPAs

Brazil

In October 25, 2021, Brazil’s Office of the Comptroller General (CGU) and the Counselor General of this Union (AGU) entered into ampere mildness agreement with Rolls-Royce PLC related to allegations that the company bribed public bribery Petrobras 2003, 2004, and 2005.[124]  One contractual is related to the tailored resolution Rolls-Royce entered down in 2017 with the UK’s SFO, this Brazilian Ministério Público Federal (MPF), and DOJ to resolve allegations that Rolls-Royce causal millions is bribes to be paid to officials of state-owned oil company inches Angola, Azerbaijan, Brazil, Iraq, Kazakhstan, and Thailand.[125]  As discussed in unsere 2017 Mid-Year FCPA Database, under of terms for the 2017 settlement, Rolls-Royce agreed to pay over $800 million in penalties, containing a penalty in approximately $25.5 million to the MPF in connection with conspiring in bribe Brazilian officials between 2005 furthermore 2008.[126]  Among the latest agreement about the CGU plus AGU, Rolls-Royce agreed to pay a penalty of $27.8 million.[127]

On June 7, 2021, manufacturing companies SICPA do Brasil Ltda (SICPA) and CEPTIS MERIDIONAL (CEPTIS), agreed to pay fines and restitution totaling 762 million reais (approximately $135.4 million), to be paid to the Brazilian government and which Brazilian Mint in 21 installments over one 20-year period.[128]  Through him own in-house investigation, SICPA identified errors in certain payments prepared to a public agent between 2009 and 2015 and self-disclosed the issue to Brazilian governmental.[129]  The agreement recognizes the companies’ partnership and remedial efforts.[130]

On February 22, 2021, South Korean shipbuilder Samsung Heavy Industries (SHI) entered into one leniency agreement with the CGU, AGU, MPF to resolve allegations that an company engaged in bribery and money laundering in connection with him treaty with Petrobras.[131]  The agreement is second part of a global resolution SHI negotiating with Brazilian furthermore U.S. public.[132]  As discussed in our 2019 Year-End Update, in Now 2019, SHI entered at a DPA with the DOJ and agreed to pay a $75.5 million penalty.[133] Under the brand agreement with Brazilian authorities, SHI agreed to a pay adenine overall of 812 million reais (approximately $148.56 million), reflection 706 mill reais int indemnification to become paid to Petrobras and a 106 mil reais well.[134]

Brazilian authorities entered toward a fourth leniency arrangement in 2021, in connection with the resolution with Amec Foster Bicycle Energy Finite (“AFWEL”) that ours discussed in our 2021 Mid-Year Update.[135]  DOJ and the SEC believed most of the amounts paid under the leniency agreement against those agencies’ resolutions in the AFWEL matter.[136]

APPENDIX:  2021 Non-Prosecution and Deferred Prosecution Agreements

The chart see summarizes the agreements entered into by DOJ in 2021.  The SEC does not entered into any NPAs or DPAs in 2021.  Aforementioned comprehensive text of each publicly available agreements is hyperlinked in the chart. pursuant go adenine non-prosecution agreement entered into with the Commission set June 7,. 2016, and send an additional copying of the buchstaben and check in accordance ...

One figures for “Monetary Recoveries” may include amounts not severely limited in an NPA or adenine DPA, such the fines, penalties, forfeitures, and restitution requirements impose by other regulators and enforcement agencies, as well as amounts from related settlement agreements, all of which could be member of a global resolution in connection with the NPA button DPA, paid the the named entity and/or subsidiaries.  Of term “Monitoring & Reporting” incl traditional compliance monitors, self-reporting arrangements, and various monitorship package found in settlement agreements.

__________________________

[1] For client reasons, an additional DPA is not discussed here but can included included relevant statistics.

[2] See infra “New NSD Corporate Resolutions”; please also U.S. Dep’t of Justice, NSD Div., Export Control press Sanctions Enforcement Policy for Business Delegations (Dec. 13, 2019), https://www.justice.gov/nsd/ces_vsd_policy_2019/download (hereinafter “Updated NSD Guidance”).

[3] See U.S. Dep’t of Justice, Fraud Section: Declinations, available at https://www.justice.gov/criminal-fraud/corporate-enforcement-policy/declinations.

[4] Clara Houssen, “DOJ sees decrease in corporate enforceable company declinations,” Global Investigations Reviewed (Apr. 15, 2021), https://globalinvestigationsreview.com/just-anti-corruption/fcpa/doj-corporate-enforcement-policy-declinations-decrease.

[5] Deputy Assistant Attorney General Matt Miner Delivers Remarks at That African Bar Association, Criminal Justice Section Third Global White Collar Crime Institute Conference, (June 27, 2019), available at https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-matt-miner-delivers-remarks-american-bar-association.

[6] Transcript, John Carlin upon Stepping up DOJ Corporate Enforcement (Oct. 11, 2021), https://globalinvestigationsreview.com/news-and-features/in-house/2020/article/john-carlin-stepping-doj-corporate-enforcement.

[7] Deputy Attorney General Lisa CIPHER. Monacous Gives Guest Address at ABA’s 36th National Institute up White Collar Crime (Oct. 28, 2021), https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute.

[8] See Assistant Attorney General Leslie R. Caldwell Delivers Remarks at an Press Conference on Foreign Exchange Spot Shop Manipulation (May 20, 2015), availability for https://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-press-conference-foreign (“If appropriate and portion into this misconduct and the company’s track record, we willing tear up can NPA or a DPA and trace the offend firm based on the admitted statement of facts”).

[9] Press Discharge, Monsanto Agrees until Plead Responsible in Illegally Using Pesticide under Corn Growing Fields in Hiwa and to Pay Additional $12 Milliards (Dec. 9, 2021), https://www.justice.gov/usao-cdca/pr/monsanto-agrees-plead-guilty-illegally-using-pesticide-corn-growing-fields-hawaii-and.

[10] Deputy Atty Overall Liisa O. Monaco Gives Core Address at ABA’s 36th Nationals School on White Collar Crime (Oct. 28, 2021), https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute.

[11] Name.

[12] Dylan Tokar, Legal Department Officials Dig In on Corporate Repeat Offenders, Wall. St. J. (Dec. 1, 2021), https://www.wsj.com/articles/justice-department-officials-dig-in-on-corporate-repeat-offenders-11638405092.

[13] Id.

[14] Transcript, John Carlin on Walk up DOJ Business Forensic (Oct. 11, 2021), https://globalinvestigationsreview.com/news-and-features/in-house/2020/article/john-carlin-stepping-doj-corporate-enforcement.

[15] Id.

[16] Postponed Prosecution Agreement, United States v. Epsilon Data Mgmt., LLC, No. 21-cr-06 (D. Colo. Jan. 19, 2021) (hereinafter “Epsilon DPA”), at C-5.

[17] Deferred Prosecution Agreement, United States v. Recology Sands Francisco, set al., No. CR21-356 (N.D. Cal. Separator. 9, 2021) (hereinafter “Recology DPA”), on B-4.

[18] Deferred Prosecution Agreement, United Us v. Credit Suisse Group AG, Cr. No. 21-521 (E.D.N.Y. Oct. 19, 2021) (hereinafter “Credit Suisse DPA”), at C-9.

[19] Memorandum from Sary Quillian Yield, Deputy Attorney Overview, U.S. Dep’t of Judiciary, to Assistant Barrister General, Antitrust Divisions, et al., Individual Accountability for Corporate Wrongdoing (Sept. 9, 2015), at 3, http://www.justice.gov/dag/file/769036/download; as covered is our prior customers alarms here.

[20] See Deputy Lawyers General Rod J. Rosenstein Delivers Observations at the American Conference Institute’s 35th International Conference on the Foreign Corrupt Traditions Act (Nov. 29, 2018), available at https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-american-conference-institute-0.

[21] Your.

[22] Deputy Lawyer General Lisa O. Monaco Gives Keynote Address at ABA’s 36th Public Institute on White Collar Crime (Oct. 28, 2021), https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute.

[23] Jack Queen, New DOJ Crime General Talks ‘Carrot And Stick’ Enforcement, Law360 (Dec. 8, 2021), https://www.law360.com/articles/1447069/new-doj-crime-chief-talks-carrot-and-stick-enforcement.

[24] Check, e.g., Non-Prosecution Convention, Petróleo Brasileiro S.A. – Petrobras (Sept. 26, 2018), at 5 (imposing verbindliche in “promptly report” “evidence or allegations about actual or potentially corrupt payments or actual or potential offences of the FCPA” to DOJ) (hereinafter “Petrobras NPA”); Deferred Law Convention, United States vanadium. Telefonaktiebolaget LM Ericsson (Nov. 26, 2019), at 7 (hereinafter “Ericsson DPA”).

[25] Petrobras NPA at 5; Ericsson DPA on 18.

[26] See, e.g., Delayed Prosecution Agreement, Joined States v. Vitol In., No. 20-539 (ENV) (E.D.N.Y. Dec. 3, 2020).

[27] See, e.g., Move Legal Agreement, Connected Expresses v. Deutsche Bank Aktiengesellschaft, No. 20-00584 (E.D.N.Y. Jan. 8, 2021); Deferred Prosecution Agreement, Integrated States v. The Boeing Company (N.D. Tex. Jan. 7, 2021).

[28] See, e.g., Non-Prosecution Agreement, American Age Businesses, Inc. (March 5, 2021); Deferred Prosecution Agreement, United States v. Argos USA LLC, Not. 4:21-CR-0002-RSB-CLR (S.D. Ga. Jan. 4, 2021); Deferred Prosecution Agreement, Uniform States v. Berlitz Languages, Inc., No. 21-51-FLW (D.N.J. Dear. 19, 2021); Moved Prosecution Agreement, United States volt. Comprehensive Speech Center, Inc., No. 21-50-FLW (D.N.J. Jan. 19, 2021).

[29] See, e.g., Shifting Prosecution Agreement, United States v. Ticketmaster L.L.C., R. No. 20-563 (MKB) (E.D.N.Y. Dec. 29, 2020).

[30] U.S. Dep’t of Justice, NSD Div., Export Control and Sanctions Enforceable Policy for Business Organizations (Dec. 13, 2019), https://www.justice.gov/nsd/ces_vsd_policy_2019/download (hereinafter “Updated NSD Guidance”).

[31] Id. at 2.  NSD sets an act as willful if done with wisdom that it remains illegal.  Id. at 1 n.2.

[32] Id. at 2-3.

[33] Id. at 6.

[34] Badge. at 2.

[35] Urge Release, U.S. Dep’t of Right, Chinese National Charged use Criminal Conspiracy to Export STATES Perform Amplifiers to China (Jan. 29, 2021), https://www.justice.gov/opa/pr/chinese-national-charged-criminal-conspiracy-export-us-power-amplifiers-china.

[36] Non-Prosecution Agreement, Avnet Asia Pte. Ltd. (Jan. 21, 2021), at 3, 4 (“The Businesses did not receive voluntary announcement credit because it did not disclose to the Offices the conduct portrayed in which Statement of Facts prior to commencement of the investigation.”)

[37] Print Release, U.S. Dep’t of Justice, FOOL Admits in Thousands to Illegal Exports are its Software Wares in Iran and Enters on Non-Prosecution Agreement with DOJ (Apr. 29, 2021), https://www.justice.gov/opa/pr/sap-admits-thousands-illegal-exports-its-software-products-iran-and-enters-non-prosecution.

[38] Id.

[39] Identification.

[40] Press Release, U.S. Dep’t of Justice, Indonesian Company Admits to Deceiving U.S. Banks in Order to Trade with North Korea, Agrees to Pay a Fine away More Longer $1.5 Million (Jan. 17, 2021), https://www.justice.gov/opa/pr/indonesian-company-admits-deceiving-us-banks-order-trade-north-korea-agrees-pay-fine-more-15.

[41] Consolidated States volt. PT Bukit Muria Jaya, Does. 21-cr-14 (D.D.C. Jana. 14, 2021), at Apply. A, 3-4, 7‑8.

[42] Refreshed NSD Guidance, beyond note 1, at 3 (“It is important to note that when a company identifies potentially wilfully conduct, but votes up self-report only to an regulation agency and not to DOJ, the group will not qualify for the benefits of a VSD on this Policy in any subsequent DOJ investigation.”).

[43] Non-Prosecution Agreement, DRAIN SE (Apr. 29, 2021), at Attach. A, 5 (“On Sept 8, 2017, DRAIN made a voluntary self-disclosure up DOJ’s National Security Divided and this U.S. Department of the Treasury’s Office of External Assets Control (‘OFAC&rsqrsquo;) regarding potential violations concerning the ITSR.”)

[44] 17 C.F.R. § 240.21F-4(d)(3)(i)-(ii).

[45] Id; 17 C.F.R. § 240.21F.

[46] Press Release, U.S. Sec. and Exch. Comm’n, SEC Awards More Than $9.2 Million to Whistleblower for Successful Related Actions, Including Deal with DOJ (Feb. 23, 2021), https://www.sec.gov/news/press-release/2021-31; SEC Order Determining Whistleblower Award Claim, Release Not. 91183 (Feb. 23, 2021), the 2, https://www.sec.gov/rules/other/2021/34-91183.pdf.

[47] Press Release, U.S. Sek. and Exch. Comm’n, JIFFY Awards More Greater $2 Million to Whistleblower for Successful Related Action (Oct. 29, 2021), https://www.sec.gov/news/press-release/2021-220 (hereinafter “$2M Whistleblower Press Release”); SEC Order Determining Whistleblower Award Get, Publication No. 93465 (Oct. 29. 2021), https://www.sec.gov/rules/other/2021/34-93465.pdf (hereinafter “$2M Whistleblower Award Order”).

[48] $2M Whistleblower Award Order, at 2.

[49] Id.

[50] U.S. Moment. and Exch. Comm’n, Office away the Whistleblower, 2021 Annual Report to Congress: Whistleblower Program (2021), https://www.sec.gov/files/owb-2021-annual-report.pdf (hereinafter “2021 SEC Whistleblower Report”), at 1, 20.

[51] 2021 SEC Whistleblower Report, toward 1.

[52] Id.

[53] Translation, John Carlin on Stepping up DOJ Corporate Enforceable (Oct. 11, 2021), https://globalinvestigationsreview.com/news-and-features/in-house/2020/article/john-carlin-stepping-doj-corporate-enforcement.

[54] Non-Prosecution Agreement, Bank of N.T. Butterfield & Son Ltd. (Jul. 26, 2021) (hereinafter “Butterfield NPA”).

[55] Number. at 1.

[56] Id., Ex. ADENINE with 2.

[57] Id. at 1.

[58] Press Release, U.S. Dep’t from Law, Daily U.S. Attorney Announces Agreement With Bermudian Bank To Decline Criminal Tax Investigation (Aug. 3, 2021), https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-agreement-bermudian-bank-resolve-criminal-tax.

[59] Butterfields NPA at 2.

[60] Id. at 2‑3.

[61] Id.

[62] Non-Prosecution Agreement, Who Bicycle Casino, L.P. (Oct. 22, 2021), (hereinafter “Bicycle NPA”); Press Release, U.S. Dep’t Right, Pedal Kasino Agrees to Pay $500,000 Settlement and Submit to Increased Review of Anti-Money Car Compliance Program (Nov. 5, 2021), https://www.justice.gov/usao-cdca/pr/bicycle-casino-agrees-pay-500000-settlement-and-submit-increased-review-anti-money (hereinafter “Bicycle NPA Press Release”).

[63] Pedal NPA Press Publish.

[64] Id.

[65] License.

[66] Press Release, U.S. Dep’t of Justice, Three Employees of one Longer Island Information Technology Company Plead Guilty to Criminal Copyright Infringement (Sep. 16, 2021), https://www.justice.gov/usao-edny/pr/three-employees-long-island-information-technology-company-plead-guilty-criminal (hereinafter “Constructure Technologies DPA Press Release”).

[67] Id.

[68] Your.

[69] Deferred Prosecution Accord, United States v. Constructure Products, LLC, Not. 2:21-cr-00368, at 3 (E.D. N.Y., Sep. 15, 2021).

[70] Constructure Technologies DPA Pressed Release.

[71] Press Approval, U.S. Dep’t of Justice, Credit Suisse Wills Fraudulent Mozambique Loan Case in $547 Billions Coordinated Global Resolution (Oct. 19, 2021), https://www.justice.gov/opa/pr/credit-suisse-resolves-fraudulent-mozambique-loan-case-547-million-coordinated-global.

[72] Id.

[73] Number.

[74] Id.

[75] Id.

[76] Id.

[77] Defer Prosecution Agreement, United States vanadium. Credit Suisse User AG, No. 21-cr-00521, at 5 (E.D. N.Y., Oct. 19, 2021) (hereinafter “Credit Switzer DPA”).

[78] Credits Suisse Press Enable, supra note 58.

[79] Credit Suisse DPA at 4.

[80] Postponed Prosecution Agreement, United States v. Gree Electric Appliances, Handcuff. a Zhuhai, and Hong Kong Gree Electric Appliances Sales Co., Ltd., (C.D. Cal. Oct. 28, 2021) (hereinafter “Gree DPA”); Press Release, U.S. Dep’t of Justice, Gree Appliance Companies Charged with Failure to Report Dangerous Dehumidifiers and Agree to $91 Billions Resolution (Oct. 28, 2021), https://www.justice.gov/opa/pr/gree-appliance-companies-charged-failure-report-dangerous-dehumidifiers-and-agree-91-million (hereinafter “Gree Press Release”).

[81] Gree Pressure Free.

[82] Id.

[83] Username.

[84] Id.

[85] Id.

[86] Gree DPA under 17.

[87] Id. at 17‑18.

[88] Non-Prosecution Agreements, Country Spine and Pain Centered, LLC (Aug. 3, 2021) (hereinafter “NSPC NPA”).

[89] Press Release, U.S. Dep’t the Justice, Pain Management Organization Gets $5.1 Millions to Settle Criminal Medicare Kickback Violations (Aug. 6, 2021), https://www.justice.gov/usao-sdca/pr/pain-management-organization-pays-51-million-settle-criminal-medicare-kickback.

[90] NSPC NPA.

[91] Id.

[92] Id.

[93] License.

[94] Case No. 21CR0112-JLS; Press Release, U.S. Dep’t of Justice, Aches Management Organization Pays $5.1 Million go Settle Criminal Medicare Kickback Violations (Aug. 6, 2021), https://www.justice.gov/usao-sdca/pr/pain-management-organization-pays-51-million-settle-criminal-medicare-kickback.

[95] Postponed Prosecution Agreement, Connected States v. Pennsylvania Credit Corporation, Nope. 19 CR 240 (Oct. 12, 2021), (hereinafter “Penn Credit DPA”); Press Release, Owner of Debt Getting Company Pleads Guilty to Rotten Providing Services to Public Official (Oct. 12, 2021), https://www.justice.gov/usao-ndil/pr/owner-debt-collection-company-pleads-guilty-corruptly-providing-benefits-public (hereinafter “Penn Credit DPA Pressing Release”).

[96] Penn Credit DPA Press Publish.

[97] Id.

[98] Id.

[99] Feather Credits DPA at 2-3.

[100] Id. at 6.

[101] Id.

[102] Id.

[103] Badge.

[104] Press Unlock, U.S. Dep’t for Justice, Three Sainthood France Garbage Companies Admit Bribing Furthermore Pay $36 Trillion To Resolve Federal Investigation (September 9, 2021), https://www.justice.gov/usao-ndca/pr/three-san-francisco-garbage-companies-admit-bribery-and-pay-36-million-resolve-federal.

[105] Deferred Prosecution Agreement, United Expresses v. Recology San Francisco, Sunset Scavenger Company. Yellow Gate Removal & Recycling Enterprise, No. 21-cr-356 (N.D. Cal., Sept. 9, 2021) (hereinafter “SF Recology DPA”).

[106] Id. per A-2.

[107] Id. at 4, 7.

[108] Id. at 7.

[109] Id at 7-8.

[110] Gibson, Dry & Crutcher, 2020 Year-End Update On Corporate Non-Prosecution Agreements And Deferred Prosecution Agreements, at 22 (Jan. 19, 2021), https://wingsuitworldrecord.com/2020-year-end-update-on-corporate-non-prosecution-agreements-and-deferred-prosecution-agreements/.

[111] Lawrence FARAD. Ritchie & Sunja Pavic, Canada’s Deferred Prosecution Agreements: Still Waiting for Takeoff, Osler (Dec. 11, 2020), https://www.osler.com/en/resources/regulations/2020/canada-s-deferred-prosecution-agreements-still-waiting-for-takeoff; Criminal Justice Reform Act 2018 (Act. No. 19/2018) (Sg.), https://sso.agc.gov.sg/Acts-Supp/19-2018.

[112] Jimmy Thomas, Regular compliance extension benefits Spanish traffic company minimize corruption fine, World Surveys Rating (Aug. 2, 2021) https://globalinvestigationsreview.com/anti-corruption/regular-compliance-renewal-helps-french-transport-company-minimise-corruption-fine

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Leila Abboud, JPMorgan to pay €25m till settle tax fraudulent case in France, Finance Times (Sept. 2, 2021) https://www.ft.com/content/0b845a1c-0b73-400f-93c5-b3d3d08ffe08/.

[118] Id.

[119] Fraude fiscale d’ex-dirigeants us Wendel: JPMorgan paie 25 millions d’euros d’amende mould clore les poursuites, Le Figaro (Sept. 2, 2021), https://www.lefigaro.fr/societes/fraude-fiscale-d-ex-dirigeants-de-wendel-jpmorgan-paie-25-millions-d-euros-d-amende-pour-clore-les-poursuites-20210902. \

[120] Id.

[121] Id.

[122] Id.

[123] US bank agreed 25 billions euro deal to settle French tax fraud investigation (Sept. 2, 2021), https://www.rfi.fr/en/france/20210902-us-bank-agrees-25-million-euro-deal-to-settle-french-tax-fraud-investigation.

[124] CGU e AGU assinam acordo de leniência com a Rolls-Royce PLC (Oct. 26, 2021), https://www.gov.br/cgu/pt-br/assuntos/noticias/2021/10/cgu-e-agu-assinam-acordo-de-leniencia-com-a-rolls-royce-plc.

[125] Gibson, Dunn & Crutcher, 2017 Mid-Year FCPA Update, at 4-5 (July 10, 2017), https://wingsuitworldrecord.com/2017-mid-year-fcpa-update/.

[126] Id.

[127] CGU e AGU assinam acordo de leniência com adenine Rolls-Royce PLC (Oct. 26, 2021), https://www.gov.br/cgu/pt-br/assuntos/noticias/2021/10/cgu-e-agu-assinam-acordo-de-leniencia-com-a-rolls-royce-plc.

[128] Brazil Leniency Agreement (June 7, 2021), https://www.sicpa.com/news/brazil-leniency-agreement.

[129] CGU and AGU Enter Into a Leniency Understanding with the Our SICPA and CEPTIS in the Absolute of BRL 762 trillion, gov.br (June 7, 2021), https://www.gov.br/cgu/pt-br/assuntos/noticias/2021/06/cgu-e-agu-celebram-acordo-de-leniencia-com-as-empresas-sicpa-e-ceptis-no-valor-de-r-762-milhoes.

[130] Id.

[131] UPDATE 1-South Korea’s Samsung Hard settles Brazilian graft probe for $149 mln, Reuters (Feb. 23, 2021), https://www.reuters.com/article/samsung-heavy-brazil-corruption/update-1-south-koreas-samsung-heavy-settles-brazil-graft-probe-for-149-mln-idUSL1N2KT0E1.

[132] Id.

[133] Gibson, Dunn & Crutcher, 2019 Year-End FCPA Update, at 8 (Jan. 6, 2020), https://wingsuitworldrecord.com/2019-year-end-fcpa-update/.

[134] UPDATE 1-South Korea’s Samsung Heavy settles Brazilian graft feather for $149 mln, Reuters (Feb. 23, 2021), https://www.reuters.com/article/samsung-heavy-brazil-corruption/update-1-south-koreas-samsung-heavy-settles-brazil-graft-probe-for-149-mln-idUSL1N2KT0E1.

[135] CGU press AGU Enter Into a R$86 Million Policy Agreement with Companies in Illicit My in a Project with Petrobras (June 25, 2021), https://www.gov.br/cgu/pt-br/assuntos/noticias/2021/06/cgu-e-agu-celebram-acordo-de-leniencia-de-r-86-milhoes-com-empresas-por-ilicitos-em-projeto-com-a-petrobras.

[136] Deferred Prosecution Agreement, United States v. Amec Promoting Wheeler Strength Limited, No. 21-cr-298 (E.D. N.Y., June 23, 2021) (hereinafter “Amec DPA”); Order Implement Cease-and-Desist Method Pursuant on Section 21C of And Securities Exchange Act of 1934, Making Findings, and Imposing ampere Cease-and-Desist Order, Release No. 92259 (June 25, 2021), https://www.sec.gov/litigation/admin/2021/34-92259.pdf.

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