Partners expect flurry of plea agreements after first UK deal approved
Judge approves ICBC Standard Bank's $32m settlement with the Serious Fraud Office over bribery allegations
November 30, 2015 at 11:40 AM
4 minute read
UK white collar partners expect to see a surge in plea agreements with the Serious Fraud Office after the first of such deals was approved earlier today.
Lord Leveson ratified the first-ever deferred prosecution agreement (DPA) by the SFO this morning, after ICBC Standard Bank admitted liability and strike a deal with the SFO to avoid the uncertainty of a criminal trial.
The bank will pay out $32.2m (£21.4m) in compensation and fines as a result of the agreement, in addition to £330,000 costs to the SFO. It will also pay $4.2m (£2.8m) to US regulators for related matters.
In addition, the bank will undergo an independent review of its anti-bribery and corruption controls.
The case concerned a $6m (£4m) payment by a former sister company of Standard Bank, Stanbic Bank Tanzania, to a local partner organisation in 2013, which the SFO claims was made to induce members of the Tanzanian government to let Stanbic handle a $600m (£400m) private placement.
Director of the SFO David Green said the "landmark" DPA would "serve as a template for future agreements".
He added: "The judgment from Lord Justice Leveson provides very helpful guidance to those advising corporates."
Stephen Parkinson, head of the criminal litigation team at criminal defence firm Kingsley Napley, argues the case will encourage other companies to come forward, saying: "there is no doubt that this is the first of many DPAs in the future."
He adds: "This was a safe case for the SFO to bring to court as the first DPA. The offence involved a single transaction rather than widespread criminality, it was reported to the SFO by the bank as soon as it was discovered; and the bank co-operated fully in the subsequent investigation."
What is certain is that DPAs are here to stay and their numbers will increase significantly.
Barry Vitou, head of Pinsent Masons' global corporate crime team, echoes Parkinson's sentiments saying clients would be "more keen" to enter into a DPA with the SFO now the first has become public.
He believes the fact ICBC Standard Bank is less high profile than some of the banks involved in other regulatory scandals will demonstrate that a DPA is an option for all companies – regardless of size.
Vitou adds: "If you look at who was pushing for DPAs it was the SFO and getting one over the line is a significant victory for them."
Patrick Rappo, a partner at US litigation specialist Steptoe & Johnson in London, comments: "The impact of this case will not be immediate, particularly as companies and their lawyers will need to digest its implications. What is certain is that DPAs are here to stay and their numbers will increase significantly."
He thinks there will be "strict entry requirements" to be eligible for such an agreement and that future DPAs will carry larger fines as UK judges seek to bring fines closer to those handed down in similar US cases.
Herbert Smith Freehills and Jones Day both advised ICBC Standard Bank on various stages of the case.
HSF fielded a team for the bank led by white collar crime partner Rod Fletcher and including senior associate Ajay Malhotra. The firm instructed Cloth Fair Chambers' QC Nicholas Purnell.
Jones Day's team, which handled the earlier stages of the case and the initial investigation before a change in ownership of the bank caused conflicts and HSF was brought in, included litigation partner Sion Richards, of counsel Glyn Powell and litigation partner Adam Brown, all based in London.
The firm's team also included Washington litigation partner Hank Walther and New York regulatory partner Henry Klehm.
Today's historic agreement comes as accountant EY published figures earlier today showing the total sum of fines issued to both businesses and individuals by the UK's regulators has nearly quadrupled in two years.
A study by the accountant found that the Financial Conduct Authority (FCA), SFO, Competitions and Markets Authority (CMA) and the Office of Fair Trading (OFT) have collectively dished out fines totalling £2.45bn since 2013.
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