On Monday the U.K. Serious Fraud Office announced its first deferred-prosecution agreement entered into under the Bribery Act. It involved the British banking institution ICBC Standard Bank Plc. The bank was charged with failing to prevent the payment of a bribe obtain business from the government of Tanzania.
According to the SFO press release, the bank made a $6 million payment to “induce members of the government of Tanzania, to show favor to Stanbic Tanzania and Standard Bank's proposal for a U.S. $600 million private placement to be carried out on behalf of the Government of Tanzania. The placement generated transaction fees of U.S. $8.4 million.” As a result of the DPA, the bank was fined $25.2 million, paid the government of Tanzania $7 million in compensation and reimbursed the SFO £330,000 for its costs.
The bank self-disclosed the violation to the SFO and conducted its own internal investigation in addition to the SFO’s probe. The SFO also cooperated and shared information with the U.S. Justice Department and Securities & Exchange Commission. As a part of the DPA, the bank agreed to pay the SEC a fine of $4 million; the SEC agreed that a payment of $8.4 for profit disgorgement could be made to the SFO.
SFO Director David Green said: "This landmark DPA will serve as a template for future agreements. The judgment from Lord Justice Leveson provides very helpful guidance to those advising corporates. It also endorses the SFO's contention that the DPA in this case was in the interests of justice and its terms fair, reasonable and proportionate. I applaud Standard Bank for their frankness with the SFO and their prompt and early engagement with us."
So it is finally here—the first DPA under the Bribery Act. Unlike in the United States, the judiciary participated fully in this process. Also most interesting was a separate surcharge by the SFO for its “reasonable costs … in relation to the investigation and subsequent resolution of the DPA.” If this is a self-funding mechanism for the SFO, it is also a departure from enforcement actions under the FCPA.
Green and others at the SFO have been saying for some time that DPAs were in the works. It certainly opens up a new enforcement front for the SFO. From where I sit, if you have a violation, it would certainly be better to get in line now, before the SFO comes knocking.