Anoushka Warlow and Suzanne Gallagher write for The Global Legal Post discussing the US DoJ’s a revised approach to corporate self-reporting

Anoushka Warlow and Suzanne Gallagher write for The Global Legal Post discussing the US DoJ’s a revised approach to corporate self-reporting

New US Department of Justice Policy demonstrates a commitment to pursuing individual wrongdoing, but will the UK’s Serious Fraud Office follow suit? BCL’s Anoushka Warlow and Suzanne Gallagher write for The Global Legal Post examining the new policy and its potential impact for the UK.

Here is a short extract from the article*. If you wish to read the full article, please visit The Global Legal Post website.

”The US Department of Justice (DoJ) has revised its approach to corporate self-reporting. Its new Corporate Enforcement and Voluntary Self Disclosure policy confirms that companies can now receive up to a 75% discount in fines (up from 50%) arising from wrongdoing where they come forward and provide “extraordinary cooperation”.

In a speech to accompany the publication of the policy, Assistant Attorney General Kenneth Polite set out three factors that will determine whether the increased discount will be applied:

  1. Immediacy: voluntary self-disclosure is made immediately upon the company becoming aware of misconduct;
  2. Compliance: at the time of the misconduct and disclosure the company had effective compliance systems; and
  3. Extraordinary cooperation: whilst there is no strict criteria, Polite made clear that extraordinary cooperation goes above and beyond full cooperation; it is not “run of the mill or even gold standard cooperation but truly extraordinary.”

‘Voluntary self-disclosure’ is described in the policy as – amongst other things – the disclosure of “all relevant facts and evidence about all individuals involved in or responsible for the misconduct”. ‘Full cooperation’ is described as the timely disclosure of all non-privileged facts and includes “identification of all individuals involved in or responsible for the misconduct at issue, regardless of their position, status, or seniority … and all non-privileged information relating to the misconduct and involvement by those individuals.”

If this is the minimum required to satisfy the ‘full cooperation’ criteria, plainly more is required if a corporate entity is to be regarded as ‘extraordinarily’ cooperative. Polite suggested that, for example, making individuals available for interview, testifying at trial or providing information that leads to additional convictions might help tip the scale.”

*This article was first published by The Global Legal Post on 10 February 2023.

 

Anoushka Warlow is a partner specialising in corporate and financial crime, principally cases involving international bribery and corruption, commercial fraud, and money laundering. Anoushka advises both individual and corporate clients and has been involved in a number of high-profile domestic and international investigations conducted by enforcement agencies including the SFO and the U.S Department of Justice.

Suzanne Gallagher is an associate with significant experience advising on complex corporate crime and regulatory investigations. Her clients include high-profile corporates and senior officers implicated in criminal investigations as suspects and where they are assisting regulatory authorities as witnesses. She also has experience of corporate self-reporting.

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