This Week in Compliance

This Week in Compliance: U.S. DOJ to Reduce Use of Corporate Monitors

Business

  • Canada refuses to negotiate Deferred Prosecution Agreement with SNC-LavalinCanadian engineering and construction company SNC-Lavalin received word this week from the Director of the Public Prosecution Service of Canada (DPPSC) that it will not invite the company to negotiate a deferred prosecution agreement. The DPPSC backed up its decision by saying that the criteria for a remediation agreement set forth in the criminal code were not met in this case. SNC-Lavalin has stated in response that it strongly disagrees with the DPPSC’s current position, arguing that it has built a “world-class ethics and compliance framework” since 2012. Following a public consultation that ended in November 2017, Canada introduced the Remediation Agreement Regime, a regime broadly similar to the Deferred Prosecution Agreements commonly used in the U.S, in September of this year. These latest developments stem from charges brought in February 2015 over allegations that the firm and two of its subsidiaries gave tens of millions of dollars to Libyan government officials in order to influence decisions. SNC-Lavalin has indicated it’s reviewing options to appeal this decision.
  • U.S. Department of Justice to reduce role of compliance monitors: In a talk last Friday at NYU Law School, Brian Benczkowski, head of the Justice Department’s criminal division, issued new guidance to prosecutors that will likely reduce the frequency of corporate settlements conditioned on the hiring of compliance monitors. The guidance implies that the imposition of a monitor should not be done punitively; it should only occur when deemed necessary to ensure compliance with the terms of an agreement. Moreover, prosecutors should weigh the “projected costs and burdens” before taking the step of imposing a monitor. Prosecutors are further instructed to consider whether a change of corporate leadership or a new “compliance environment” has already sufficiently reduced the chance of additional violations. However, the new policy is not a radical departure from the past, as only a third of corporate resolutions from the past five years have involved a monitor.
  • Twitter facing GDPR scrutiny over refusal to comply with subject access request: The Irish Data Protection Commission (DPC) has confirmed that it is investigating whether Twitter’s refusal to comply with a ‘subject access request’ constitutes a breach of the EU’s General Data Protection Regulation (GDPR). The investigation relates to a complaint lodged by a researcher at University College London (UCL) after Twitter refused to tell him how the company uses its shortened t.co links to track user data. The Irish DPC also indicated it would consider involving the European Data Protection Board, an independent advisory body tasked with ensuring that the GDPR is consistently applied across the individual member states. Under the GDPR’s ‘One Stop Shop’ principle, Ireland’s DPC is now tasked with investigating cross-border breaches.
  • Audi pays EUR 800 million to settle diesel engine probe: Luxury car brand Audi announced on Tuesday that it reached an agreement with German authorities to pay a EUR 800 million fine to settle an investigation related to the sale of cars with six- and eight-cylinder diesel engines that contained software that illegally manipulated emissions. The settlement follows parent company Volkswagen AG, which has paid over USD 27 billion in fines and compensation payments after admitting in 2015 that it installed cheating software on nearly 11 million diesel vehicles. Criminal investigations into Volkswagen sports-car subsidiary Porsche, as well as criminal investigations of a number of current and former employees of the car manufacturing giant, remain ongoing. Audi’s chief executive was fired earlier this month as he has been in preventative detention in Munich since June.

Government

  • Brazilian President Michel Temer faces additional corruption charges:Brazil’s federal policy filed new charges against President Michel Temer on Tuesday. The charges relate to corruption, money laundering and criminal association for taking bribes to favor certain port management companies. The investigation centers on a decree signed by Temer in 2017 which extends the concessions at the Santos port from 25 to 35 years. The report also brings charges against one of the president’s daughters and two of his closest aids; it further recommends Temer’s assets be frozen. The country’s Attorney General will now have 15 days to decide whether to formally pursue the case. If she does so, two-thirds of Congress’ lower house would still need to vote to allow a trial, potentially suspending Temer. However, lawmakers have rejected a trial in two previous attempts to have Temer stand trial over corruption charges.
  • Peru arrests opposition leader Keiko Fujimori over corruption: Keiko Fujimori, opposition leader and daughter of disgraced former president Alberto Fujimori, was arrested over allegations of money laundering involving Brazilian construction firm Odebrecht, one of the companies at the center of Brazil’s sprawling Operation Car Wash investigation. Keiko Fujimori’s arrest comes a week after a top court in Peru revoked the pardon of her father Alberto Fujimori, who was serving a 25 year prison sentence for commanding death squads during his time in government. The charges specifically stem from contributions made to her election campaign. Fujimori is the leader of the biggest opposition party which was key in ousting President Pedro Pablo Kuczynski from office earlier in March. In total, three former presidents have been under investigation relating to Odebrecht bribes since June.
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