On 14 June 2018, Baker McKenzie hosted a Deferred Prosecution Roundtable discussion and Q&A in the Toronto Office. The event provided a forum to discuss legal and policy issues relating to the introduction of Deferred Prosecution Agreements (DPAs) in Canada.
Following a brief introduction of the DPA regime in Canada, the first roundtable session considered Negotiating DPAs in the UK & US – Best Practices and Pitfalls and was moderated by partner, Chris Burkett. The speakers shared their diverse experiences from negotiating DPAs in the United States and the United Kingdom to provide insight on the future of DPAs in Canada and what lessons learned and best practices may apply in the Canadian context. The speakers also identified particular challenges that arise in negotiating DPAs in a cross-border context and shared how the firm's global expertise can be deployed to assist clients working in multiple jurisdictions.
- Many corporations are operating in an era of global enforcement and increasing cooperation between regulators, which has significant implications for assessing risk as well as if and in what jurisdiction to make a voluntary disclosure.
- Although DPAs offer a mechanism to manage risk associated with criminal liability, the risk of downstream litigation arising from the underlying conduct, including in other jurisdictions, is not necessarily mitigated.
- DPAs shift the cost and burden associated with compliance to the corporations.
- Careful consideration must be given to the competing interpretations across jurisdictions of the scope of privilege that arises from an internal investigation and if it must be waived in order to obtain a DPA.
The second roundtable session focused on Qualifying for a DPA – Best practices in compliance program development and internal investigations and was moderated by Brian Whisler. The speakers discussed in detail how compliance programs and internal investigations can be effectively leveraged in negotiating a DPA. The speakers also offered best practices in managing employee-related risks associated with whistle-blowing and tips on creating a culture that encourages internal reporting. In addition, the speakers provided recommendations on what firms can do to adapt and update compliance programs, to ensure that they are "DPA-ready."
- A strong internal compliance regime can serve as a valuable tool in negotiating a DPA, however there is very little prescriptive guidance as to what regulators will consider a sufficient internal compliance program.
- To prepare their compliance regime for DPAs in Canada and to avoid the appearance of a "paper compliance program" corporations should consider the depth of meaningful compliance mechanisms, including communication, training, auditing, reporting, disciplinary measures, the commitment and engagement of senior and mid-level management, third party due diligence, and periodic testing and review.
- Strategic consideration should be given to how to manage multijurisdictional data protection and data privacy regimes in the context of an internal investigation and/or voluntary disclosure.
- Managing reputational risk, in particular with a corporation's regulator and the public, is a key consideration in assessing the drawbacks and benefits of voluntary self-disclosure.
The roundtable reflected the deep and diverse experience of the Firm, including those with experience with the UK's Serious Fraud Office, the US Department of Justice, the Crown Attorney’s office, and the highest levels of the Canadian government. The Firm's moderators and speakers included:
- Brian Whisler is the chair of the DC Litigation and Government Enforcement Practice Group. Prior to joining Baker McKenzie, Brian served as the Criminal Chief Assistant US Attorney in the Eastern District of Virginia, Richmond, overseeing and prosecuting cases including from white collar crime and public corruption.
- Peter MacKay, the former Attorney General and Minister of Justice until November 2015. He helps lead the Toronto office's Government Enforcement practice.
- Peter Tomczak who serves as a member of the Steering Committee of Baker McKenzie's North America Litigation and Government Enforcement Practice Group, and the Chair of its Chicago Office Litigation and Government Enforcement Practice Group.
- Henry Garfield works in the firm's London office specializing in business crimes. He previously completed a secondment at the UK's Serious Fraud Office (the Government agency tasked with investigating and prosecuting serious fraud, bribery and corruption).