The settlement requires DB to pay $95 million. The settlement does not state how that figure was derived. I could speculate but I suspect there would be a high chance that my speculation would be misfocused.
The agreement says that the following claims of the U.S. are not released:
a. Any claim for conduct other than the Covered Conduct.
b. "Any criminal liability."
c. A broad swath of potential liability in a paragraph that I am not sure I understand the full scope of (so I quote that paragraph, ¶ 5.c.):
Except as expressly stated in this Stipulation, any administrative liability (other than (i) the collection, assessment, or adjustment of any income tax, including any interest thereon and any penalties for failure to report or failure to pay such income tax, arising from the Covered Conduct and (ii) BMY's unpaid tax liability, including any interest thereon and any penalties for failure to report or failure to pay such income tax, resulting from the sale of the Bristol-Myers shares), including the suspension and debarment rights of any federal agency;The settlement further states (¶ 7):
7. Deutsche Bank waives and will not assert any defenses it may have to any criminal prosecution or administrative action relating to the Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the United States Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the United States Constitution, this Stipulation bars a remedy sought in such criminal prosecution or administrative action.JAT Comments:
1. The Covered Conduct sounds like tax evasion and, likely some other tax related criminal conduct such as conspiracy (offense or defraud) and tax perjury. There may be a back story that I am not familiar with, but as noted above the settlement does state cryptically that DB is not released from "Any criminal liability." (¶ 5.a.; see also ¶ 7, both quoted above). The Covered Conduct occurred for the target corporation's fye 4/20/01, so the criminal statute of limitations probably would have expired unless DB did something to refresh the statute of limitations (a la United States v. Beacon Brass Co., Inc., 344 U.S. 43 (1952)) or to suspend the statute while it was otherwise open (such as by consent). One inference (probably not compelled) is that there is a criminal case that could still be pursued. Still, the civil liabilities are usually not concluded until any criminal investigation or prosecution is concluded.
2. Even beyond possible criminal prosecution, as I indicated, I am not sure exactly what paragraph 7 is getting at. The parties reaching the settlement certainly know what potential conduct it covers.