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Wendy Berman Looks at Deferred Prosecution Regimes in Lexpert


Wendy Berman has been quoted in the article “Notice to Neighbours: Canada’s DPA Regime,” published in the 2019 Lexpert Guide to US/Canada Cross-Border Lawyers in Canada.

Writes Sandra Rubin: “Canada recently adopted a deferred prosecution regime, joining the US in adopting a regime that allows regulators to remediate bad corporate behavior outside of a lengthy court trial situation.”

Other countries are also considering adopting similar regimes, Wendy says this is because they “provide enforcement with a way to clean up companies but punish just the law-breakers.”

Wendy points out Canada’s regime requires the corporation admit wrongdoing and pay significant financial penalties as well as disgorgement. “If a corporation were tried and convicted, you would probably remain somewhere around the same amount in terms of financial penalty. “I feel like a lot of people ignore that. They think the company’s going to get away with it, no one’s going to be held accountable. I can’t understand that, that somehow a corporation’s buying its way out of responsibility. They start by admitting responsibility.”

“And any company that signs a DPA it will have a lot of conditions on it for improvement: enhanced compliance regimes, a monitor – which can be very costly – and a duty to report on the implementation of the conditions to the court.” If the company violates any of the terms, the criminal prosecution will proceed.

Read the full article here.

Wendy is one of six Cassels partners ranked as leaders in the 2019 edition of this guide, along with Chad Accursi, Matthew Alter, Jay Goldman, Thomas Isaac and Paul Stein.