Ben Morgan of SFO gave his views on the first DPA. He said he wanted to comment on general matters, which, in his view were:
- that the case had proved where the “high bar” for co-operation could be. SFO had previously indicated that in order for it to consider a DPA might be appropriate there would need to be a high degree of willingness to co-operate and that this should prove to be the case in fact. He said that many entities, using lawyers, pledged to co-operate, but in SFO’s view then stalled and hindered SFO rather than helping it. He praised the conduct of all parties in this investigation and said any company considering this route should take note;
- that, although “adequate procedures” were not discussed in this particular case, the important thing was to view facts as they occurred, and that regardless of what any procedures might say, if a red flag seems obvious, it should be treated as such; and
- the importance of the judge’s comments on how Standard Bank had acted once it became aware of the problem. He suggested its conduct was a prime reason for SFO deciding a DPA was appropriate, and stressed SFO will not be planning to make most corporate actions DPA arrangements. It will use DPAs only when a narrow set of specific factors suggest it is the best route.
(Source: SFO Speaks on DPAs)