Thursday, December 31, 2015

Julius Baer Group Ltd. Expects to Pay $547 Million to US to Conclude Criminal Investigation (12/31/15)

Julius Baer Group Ltd. ("Julius Baer) expects to pay $547 million to conclude the criminal investigation pursuant to an agreement in principle with the U.S. prosecutors.  See Juilius Baer's news release here; and Giles Broom & David Voraceos, Julius Baer to Pay $547 Million to Resolve U.S. Tax Probe (BloombergBusiness 12/30/15), here, and Mark Scott, Julius Baer Reaches Preliminary Tax Deal With U.S. Authorities (NYT  DealBook), here

Key points from these sources:

1.  Julius Baer was one of the category 1 banks under criminal investigation excepted from the opportunity to join the U.S. DOJ Swiss Bank Program, here, as a category 2 bank to achieve a nonprosecution agreement.

2. The resolution is a “comprehensive resolution regarding its legacy U.S. cross-border business.” It is not clear what this means.  I would expect that Julius Baer will have to plead guilty to some criminal charge, perhaps conspiracy.  However, the NYT Dealbook reported that
While analysts said the potential settlement might end the issue for Julius Baer, it remained unclear whether the bank would be forced to plead guilty to criminal charges related to suspected conspiring to aid tax evasion.
UBS was required to enter a deferred prosecution agreement; Credit Suisse was required to plead guilty to a conspiracy crime.  See Credit Suisse Pleads to One Count of Conspiracy to Aiding and Assisting (Federal Tax Crimes Blog 5/19/14; 5/20/14), here.

Since a corporate or other juridical entity can't go to jail, its criminal punishment consists of monetary exactions (such as fines, penalties and restitution) and whatever collateral effects a guilty plea may have.  See generally Judge Jed Rakoff Reviews Brandon Garrett's Book on Too Big to Jail: How Prosecutors Compromise with Corporations (Federal Tax Crimes Blog 2/10/15), here.  For financial institutions, the collateral effects can be significant if they preclude the financial institution from certain lines of business or otherwise limits or affects their business models.  Credit Suisse threaded the needle on that.  But I still can't imagine that the U.S. will not require a guilty plea to some crime, just as it did for Credit Suisse.

3.  Two Julius Baer employees, Daniela Casadei and Fabio Frazzetto, were indicted in 2011, but have not yet come to the U.S., so the case has not proceeded beyond the indictment stage.  See BloombergBusiness article.  And, they are reported to still be with Julius Baer.  I would not expect that their criminal indictments will be resolved by the resolution with Julius Baer and would expect that their relationship with Julius Baer will be terminated.  (I am surprised that Julius Baer had not already terminate them in an attempt to curry favor with DOJ.)

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