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Of Barclays and DPAs

Tom Fox | July 11, 2017

To say Barclays bank is having a bad year would be a mild understatement. From the CEO violating both internal company policy to U.S. securities law in trying to unmask an internal whistleblower to the now indictment of four former top officials for violating U.K. banking law in their pursuit of monies to bail the bank out during the 2008 financial crisis, it is one the bank would surely desire to put behind it. Now, however, the bank itself has been indicted for the same bailout involving the Qatari government. The basic allegation is that Barclay’s loaned the Qatari’s money to invest back into the bank to stave off a U.K. government takeover with the liquidity crisis of the time, while claiming the payments made to the Qatari government at or near the time of the Qatari investments were for legitimate services.

The bank finds itself in a most precarious position after the indictment, separate and apart from the individual indictments against its former CEO and three other top bank officials. If the bank pleads guilty or sustains a guilty verdict, it could well face collateral punishment such as debarment or loss of some banking privileges. Even if the bank goes to trial and wins, the public relations disaster of the airing of the bank’s tactics during the 2008 financial crisis will not sit well in the court of public opinion.

It is in situations such as this that the tool of a Deferred Prosecution Agreement (DPA) can be so powerful. Yet in the United Kingdom, DPAs require two critical ingredients. First the defendant must cooperate with the U.K. enforcement agency, the Serious Fraud Office, and the company must accept wrongdoing. Apparently, Barclays had not previously met either criteria. Yet, is it really in the interest of the U.K. government to put such a significant institution on the chopping block by forcing a guilty plea or verdict? Is Barclays too big too jail? Stay tuned.