Australia Deferred Prosecution Agreements

September 11th, 2021

5.3 The 2017 CCA model would allow prosecutors to invite a company to negotiate a CCA. The terms of the CCA would generally require the company to cooperate with each investigation; pay a fine (the amount of which may partially reflect the degree of cooperation); and implement a compliance improvement program by continuously monitoring. In exchange, the charge would be postponed. Under the 2017 CCA model, the final terms of a CCA would then have to be approved by a retired judge and, once the conditions of the CCA were met, the case would be deemed settled without prosecution or conviction. [4] Based on the findings of our Corporate Crime and Investigations and Class Action teams, we examine in this briefing what DPAs mean for class action risks and what issues companies face in dealing with emerging issues that may result in deferred lawsuits. I think right now, without clear instructions on what companies should do to actually take advantage of a DPA, a lot of lawyers could advise their companies to wait and see – perhaps to risk prosecution. But if we had a clear DPA process and clear instructions from supervisors on what they expect as an effective compliance program, there would be many companies that would see this as an incentive to launch an effective compliance program. I think that would really incentivize companies to improve their performance so that they can use a DPA mechanism…

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