Bank misconduct fuels surge of Federal DPAs and NPAs
- Continuing scrutiny of deferred prosecution agreements by federal judges: “We are seeing federal judges going into issues that historically prosecutors believe are only their province, such as what is the nature of the charges, and are they suitable or not,” Warin said. This scrutiny may well lead to fewer DPAs and more NPAs or guilty pleas, he predicted.
- Increasing use of approaches such as the Swiss Bank program: “This could be the litmus test for other sorts of structural approaches to mass cases that have similar fact patterns,” he said. “Imagine a similar regime or structure with other countries.”
- Revocation of the NPA of a misbehaving bank: That happened when Zurich-based UBS, after being granted immunity from antitrust charges, admitted it had conspired to rig the price of foreign exchange currencies. But the admission meant it could be charged with violating its 2012 NPA for manipulating LIBOR interest rates (London Interbank Offered Rate). “Nonvoluntary revocation is a substantial sea change from how the DOJ has exercised its prerogatives historically,” Warin noted.
- Growing use of NPAs and DPAs: “What you are seeing,” Warin said, “is an explosion in the use of this vehicle.” He noted 15 years ago such deals were rarely used outside of Main Justice and the U.S. attorney’s office in New York. In fact, in 2000 there were only two settlements.
Published July 13, 2015
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