Last month we wrote about the Justice Department’s new corporate resolution policy, which is intended to curb the practice of multiple government authorities imposing separate punishments on a corporate defendant for the same underlying conduct. Employing a football metaphor, Deputy Attorney General Rod Rosenstein explained that the intent of the new policy was to prevent “piling on,” which he described as “a player jumping on a pile of other players after the opponent is already tackled.” In the wake of this policy change, we have been carefully following Justice Department announcements of corporate investigations to see how this policy will work in practice.

The Justice Department recently announced resolution of a Foreign Corrupt Practices Act investigation involving a Hong Kong subsidiary of Swiss bank Credit Suisse. The allegations involved the awarding of employment to friends and family of Chinese officials in exchange for banking business. As part of the resolution, the Credit Suisse subsidiary entered into a non-prosecution agreement and agreed to pay a criminal penalty of $47 million. The SEC simultaneously announced that Credit Suisse entered into a settlement agreement covering the same underlying conduct and agreed to pay disgorgement of nearly $25 million with nearly $5 million of prejudgment interest. In an apparent nod to the anti-“piling on” policy, the SEC agreed to refrain from imposing any civil penalty. In fact, the SEC administrative order expressly provides that “[Credit Suisse] acknowledges that the Commission is not imposing a civil penalty based upon the imposition of a $47 million criminal fine as part of Credit Suisse’s settlement with the United States Department of Justice.”

When Rosenstein unveiled this new policy last month, he cited two examples of recent corporate resolutions that he said were consistent with the new anti-“piling on” approach. One of those resolutions, announced in April 2018, is very similar to the Credit Suisse resolution announced last week. In that case, the Justice Department entered into a deferred prosecution agreement in an FCPA investigation of the subsidiary of a global electronics company. The company paid a criminal penalty of $137 million. In a related proceeding, the SEC filed a cease-and-desist order against the company, which required the payment of $143 million in disgorgement for the same conduct. Rosenstein noted that the SEC agreed to forgo the imposition of penalties given the company’s agreement to pay a criminal penalty to the Justice Department.