Fraud Intelligence

After a long wait, writes Mark Dunn, the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have finally published guidance to help companies comply with the US anti-bribery & corruption legislation, the Foreign Corrupt Practices Act (FCPA). On its release on 14 November 2012, the two agencies enthusiastically proclaimed, “There may (be) no other area of the law where DOJ or SEC has provided the public with as much information about our enforcement approach and priorities.” Does the guidance meet expectations and provide clarity or is it simply a rehash of existing information from US regulators?

Fallen star – UBS rogue trader jailed for record UK bank fraud, firm fined UK£29.7m Kweku Adoboli, the ex-UBS trader whose activities on the Swiss bank’s Exchange Traded Funds (ETF) desk led to US$2.3bn in losses, was jailed..

Detecting and monitoring fraud, money laundering and other criminal activities is a daunting task for financial institutions, writes MJ Deschamps and instances of breaches have only increased as the number of platforms across which institutions do..

In Perry and others v Serious Organised Crime Agency [2] and Perry and others No.2 v Serious Organised Crime Agency, write Charles Thomson and Ben Ko of Baker & McKenzie, the Supreme Court allowed the joint appeals brought by Mr Perry, some members of his family, and entities associated with them. The Supreme Court ruled that the High Court does not have the jurisdiction to make civil recovery orders in respect of property located outside of England and Wales. Similarly, notices under disclosure orders requesting information from Mr Perry and his daughters could not be served under the Proceeds of Crime Act 2002 (POCA) to individuals outside of the UK. This clarification of the extraterritorial effect of POCA has caused some controversy and has raised questions as to the purpose and efficacy of the civil recovery regime.

Timon Molloy, Editor (timon.molloy@informa.com)

On 9 October 2012, the Serious Fraud Office published revised policies on facilitation payments, business expenditure and corporate self-reporting. [1] Omar Qureshi of CMS Cameron McKenna LLP assesses the change in tone.

When allegations of waste, fraud, overbilling or kickbacks by a vendor emerge, the first response might be to conduct a vendor audit – guidelines for which are buried in an often overlooked section of the contract, the ‘right to audit’ clause. The difficulty of an impending audit can often be gauged by the strength of the audit clause language, says Ryan Hubbs.

On 23 October 2012, the Ministry of Justice (MoJ) issued its response to the deferred prosecution agreements (DPAs) consultation [1], along with legislative proposals, which feature as amendments to the Crime and Courts Bill currently before Parliament. DPAs may therefore be introduced in England and Wales as early as next year, write Omar Qureshi and Amy Smart of CMS Cameron McKenna, although they note that the Impact Assessment assumes they will not be in use before early 2014. DPAs will be available for wrongdoing that predates their enactment, so the first agreements could be reached fairly quickly after they come in.

The Ablyazov decision is the latest in a series of contempt of court actions that have proceeded through the courts of England and Wales in the last 12 months, write Henry Garfield and Andrew Matheson of Baker & McKenzie. Here they examine five such cases; together these provide a useful update on the English courts’ attitude to contempt proceedings and help to illustrate the circumstances in which contempt of court will be considered a criminal offence and when it will be viewed as a civil wrong.

Timon Molloy, Editor (timon.molloy@informa.com)