Airbus announced yesterday that it has reached a settlement with US, UK and French authorities, following a self-report and a 4-year investigation. The SFO remains tight-lipped until the agreement has been approved by the Court on Friday. The judgment will be given by Dame Victoria Sharp, the President of the QBD and successor to Sir Brian Leveson.
So what will we learn from this, the SFO's 7th DPA?
- We are likely to see evidence of exceptional cooperation between authorities in (at least) 3 countries, which have worked together to reach a single, consolidated agreement. The takeaway for companies? When investigating potential misconduct, consider which authorities you may need to consider reporting to. There are more global players in ABC enforcement than ever before.
- French anti-corruption authorities grabbed headlines with the 2017 Sapin II legislation, which is broad and has extra-territorial application. This case has involved close cooperation between France and UK - which was a feature of the criminal investigation into alleged corruption by individuals and companies in the Alstom group. This judgment should help companies operating in France to gain insight into the activities of the French authorities in the ABC sphere.
- How will Dame Victoria Sharp approach the assessment of a proposed DPA? Will there be parallels with judges who have approved previous DPAs, or will she have a new take? Look out for the setting of new precedent on points of interest to corporates looking for guidance: the level of cooperation Airbus has provided to the authorities, the scale and nature of internal investigation it conducted, whether it waived privilege over legal materials and if so, to what extent.
- Following the SFO's 17 January 2020 internal guidance on evaluating compliance programmes, it will be interesting to see how Airbus' current compliance programme has been assessed. A strong – and much-improved – compliance programme has been a key feature of previous DPAs. Look out for the Court's endorsement of risk assessment, proportionality and robust implementation by a properly resourced compliance function.
- This looks set to be a bumper financial settlement – perhaps the largest the UK has seen. Analysts have predicted fines in excess of £2.5bn. It will be interesting to see how the fines are split between the US, UK and French authorities. Watch for how the fine has been calculated with reference to global turnover, and the how the court translates into numbers the harm caused by the offences.
Airbus will be keen to put this long-running investigation behind it as it looks to its current commercial challenges: increasing production and market share, while responding to concerns over the airline industry's role in climate change.
