Settlement Agreement Deferred Prosecution
The three-year CCA is extended by one year in the event of an infringement.  However, Apotex must continue to cooperate with THE DOJ until «all investigations and prosecutions, whether against former employees of the company or other natural or legal persons, resulting from the conduct described in the agreement, whether or not they are completed within three years» of the data protection authority.  Although data protection authorities often impose cooperation obligations beyond the provisions of the agreements, the inclusion of this language suggests, in this context, that this specific antitrust investigation conducted by the DOJ against the generic drug industry may continue for years. In March 2019, the DOJ Fraud Section, the U.S. Attorney`s Office for the Eastern District of Virginia (E.D. Va.) and Lumber Liquidators included a data protection authority in connection with criminal information that accuses the company of securities fraud.  The agreement limited a multi-year investigation, initiated following a 60-minute segment of March 1, 2015, in which it was alleged that the laminate floors sold did not comply with California Air Resource Board (CARB) rules because they contained an unacceptable amount of formaldehyde.  In cases where several jurisdictions are likely to be interested in enforcement action, companies should carefully consider, with the participation of local advisors, where appropriate, the pros and cons of voluntary disclosure of behaviour on the ground and the promotion of coordinated comprehensive regulation. The latest Airbus regime is a striking example of a coordinated cross-border solution.
As explained in more detail above, Airbus concluded parallel and multi-judicial transactions with DOJ, the French government`s National Financial Package («PNF») and the BRITISH Serious Fraud Office (SFO) on 31 January 2020 with a value of more than $3.9 billion. By fining more than $2.3 billion, the DOJ has credited Airbus with nearly $1.8 billion in penalties of more than $2.2 billion.  The Airbus Settlement is both the largest international bribery regime to date and the largest DPA to date for the SFO.  Two recent decisions by the D.C. and Second Circuits Appels Tribunals confirm that the preferred approach is the long-standing practice of imposing out-of-court enforcement agreements.