A deferred prosecution agreement, or “DPA,” is a mechanism for resolving a case against a company that is, essentially, an unofficial form of probation. Although usually used to resolve a criminal case, civil enforcement agencies like the SEC have begun to use them as well.
Under a DPA, the government will bring charges against a defendant but agrees not to move forward on those charges. In exchange, the defendant agrees to abide by certain requirements or conditions. If the defendant satisfies its end of the bargain, the government agrees to drop the charges. But if the defendant reneges and violates the conditions of the DPA, the government can move forward with the prosecution.
The conditions of a DPA are negotiated between the defendant and the government. For example, the agreement might require the defendant to admit wrongdoing, to pay restitution, or to take certain actions to prevent future wrongdoing. For example, a DPA might require a corporation to fire the executives responsible for the wrongdoing, to implement a more robust compliance program, to submit to an independent monitor to ensure upright conduct or all of the above – and maybe, even more.
A DPA is not the same as a plea bargain or a sentence of probation. Under a plea bargain or a sentence of probation, a defendant is convicted of a crime. Compliance with the terms of the plea bargain or terms of probation is overseen by the court. A DPA, by contrast, is largely imposed and monitored outside the judicial system. A defendant who submits to a DPA is not convicted of any crime. The charges are dismissed if the company complies with its obligations under the DPA.
The Department of Justice (DOJ) has called DPAs an “important middle ground” between indictment of a corporation and declining to bring charges altogether. DOJ will typically consider a DPA when the collateral consequences of indicting a corporation will be significant and cause harm to innocent third parties.
当然，除了延缓起诉协议，美国司法部还有其他和解方式，例如不起诉协议（Non-Prosecution Agreement）,认罪协议（Plea Agreement）.
Huawei is a Chinese company headquartered in Shenzhen, Guangdong, and a leading global provider of information and communications technology. Huawei, including its corporate subsidiaries and affiliates, employs more than 197,000 people and operates in over 170 countries and regions.
华为是一家总部位于广东深圳的中国公司，是一家领先的信息和通信技术的全球供应商。华为，包括其子公司和附属公司，聘用超过 197,000 名员工，业务遍及 170 多个国家和地区。
Ms. Meng is a Chinese citizen and the daughter of Huawei’s founder, Ren Zhengfei, and since 2010 has served as Huawei’s Chief Financial Officer. Ms. Meng also serves as Deputy Chairwoman of Huawei’s Board of Directors.
Skycom Tech. Co. Ltd. (“Skycom”) was a Hong Kong company that primarily operated in Iran. As of February 2007, Skycom was wholly owned by Huawei subsidiary Hua Ying Management (“Hua Ying”). In November 2007, Hua Ying transferred its shares of Skycom to another entity that Huawei controlled, Canicula Holdings (“Canicula”). At the time Hua Ying transferred its Skycom shares to Canicula, Ms. Meng was the Secretary of Hua Ying.
Skycom科技有限公司（“Skycom”）是一家香港公司，主要业务运营在伊朗。截至 2007 年 2 月，Skycom 由华为子公司华盈管理（“华盈”）全资拥有。 2007 年 11 月，华盈将其持有的 Skycom 股份转让给华为控制的另一家实体 Canicula Holdings（“Canicula”）。华赢将 Skycom 的股份转让给 Canicula 时，孟是华赢的秘书。
In February 2008, after Huawei transferred ownership of Skycom from Hua Ying Canicula, Ms. Meng joined Skycom’s Board of Directors, which was comprised of Huawei employees. She served on the Board until April 2009. After Ms. Meng departed from Skycom’s Board, Skycom’s Board members continued to be Huawei employees, Canicula continued to own Skycom, and Canicula continued to be controlled by Huawei. As of August 2012, Huawei included Skycom among a list of “other Huawei subsidiaries” in Huawei corporate documents written in English.1
2008年2月，在华为将Skycom从华盈转让给Canicula后，孟加入了Skycom 董事会，董事会成员包括华为的员工。她在董事会任职至 2009 年 4 月。孟离开Skycom董事会，该董事会成员继续是华为员工，Canicula继续拥有Skycom，Canicula继续由华为控制。截至 2012 年 8 月，华为在以英文撰写的华为公司文件中将 Skycom 列入“其他华为子公司”名单。
Between 2010 and 2014 (the “Relevant Time Period”), Huawei controlled Skycom’s business operations in Iran, and Skycom was owned by an entity controlled by Huawei. All significant Skycom business decisions were made by Huawei. Moreover, Skycom’s country manager—the head of the business—was a Huawei employee. Individuals employed by Skycom believed they worked for Huawei. Indeed, Skycom employees used email addresses with the domain “huawei.com.”
2010 年至 2014 年（“相关时间段”）期间，华为控制了 Skycom在伊朗开展的业务，Skycom 由华为控制的实体拥有。 Skycom 的所有重大业务决策均由华为做出。此外，Skycom 的区域经理——业务负责人——是一名华为员工。 Skycom 雇用的员工认为他们为华为工作。事实上，Skycom 的员工使用域名为“huawei.com”的电子邮件地址。
During the Relevant Time Period, Huawei employees engaged with a U.K. staffing company to provide engineers in Iran to support Skycom’s work with Iranian telecommunications service providers. Negotiations and contracting on behalf of Skycom were conducted by Huawei employees. To pay for these contractors, Huawei sent at least $7.5 million to the U.K. staffing company in a series of approximately 80 payments from Skycom’s bank accounts in Asia, including at a multinational financial institution (“Financial Institution 1”), to the U.K. staffing company’s account in the United Kingdom. The transactions were denominated in U.S. dollars and cleared through the United States.
相关时间段内，华为员工与一家英国人员外包公司有业务往来。该公司在伊朗提供工程师以支持 Skycom 与伊朗电信服务提供商的合作。代表 Skycom 的谈判和签约由华为员工进行。为了支付这些承包商的费用，华为通过Skycome的亚洲银行账户，包括在一家国际金融机构的账户，至少向英国公司汇出 750 万美元，约80笔款项。交易以美国计价，并通过美国清算。
In December 2012 and January 2013, various news organizations, including Reuters, reported that Skycom offered to sell “embargoed” equipment from a U.S. computer equipment manufacturer in Iran in potential violation of U.S. export controls law, and that Huawei had close ties with Skycom. In a statement to Reuters published in a December 2012 article, Huawei claimed that Skycom was one of its “major local partners” in Iran. Reuters reported that Huawei had further stated that “Huawei’s business in Iran is in full compliance with all applicable laws and regulations including those of the U.N., U.S. and E.U. This commitment has been carried out and followed strictly by our company. Further, we also require our partners to follow the same commitment and strictly abide by the relevant laws and regulations.”
2012 年 12 月和 2013 年 1 月，包括路透社在内的各新闻机构报道称，Skycom 出售来自美国的计算机设备制造商的设备，这些设备被认定为“禁运”设备，可能违反美国的规定出口管制法，并且华为与 Skycom 关系密切。在 2012 年 12 月发表的一篇给路透社的声明中，华为声称 Skycom 是其在伊朗的“主要当地合作伙伴”之一。路透社报道称，华为进一步表示，“华为在伊朗的业务完全符合包括联合国、美国在内的所有适用法律法规。华为将严格执行并遵守了这一承诺。此外，华为也要求我们的合作伙伴遵循同样的承诺，严格遵守相关法律法规。”
In January 2013, a subsequent Reuters article reported that Ms. Meng had served on the Board of Directors of Skycom between February 2008 and April 2009 and identified other connections between Skycom directors and Huawei. The article also quoted a statement from Huawei that: “The relationship between Huawei and Skycom is a normal business partnership. Huawei has established a trade compliance system which is in line with industry best practices and our business in Iran is in full compliance with all applicable laws and regulations including those of the UN. We also require our partners, such as Skycom, to make the same commitments.” This statement was incorrect, as Huawei operated and controlled Skycom; Skycom was therefore not Huawei’s business “partner.”
2013 年 1 月，路透社随后的一篇文章报道称，孟曾于 2008 年 2 月至 2009 年 4 月期间在 Skycom 董事会任职，并确定了 Skycom 董事与华为之间的其他联系。文章还引用了华为的一份声明：“华为与Skycom的关系是正常的商业伙伴关系。华为建立了符合行业最佳实践的贸易合规体系，我们在伊朗的业务完全遵守包括联合国在内的所有适用法律法规。我们还要求我们的合作伙伴，例如 Skycom，做出同样的承诺。”该陈述是不正确的，因为华为运营和控制了Skycom；因此，Skycom 不是华为的商业“合作伙伴”。
After these articles were published, Financial Institution 1 and other global financial institutions that provided international banking services to Huawei (collectively, the “Financial Institutions”), including U.S. dollar-clearing, made inquiries to Huawei in response to the above described press reports. In early 2013, Huawei employees represented to the Financial Institutions that Skycom was just a local business partner of Huawei in Iran and that Skycom had not conducted Iran-related transactions using its accounts at the Financial Institutions.
To address the allegations in the news reports, Huawei requested an in-person meeting with a senior Financial Institution 1 employee. That meeting occurred on August 22, 2013 (the “August Meeting”), at which time Ms. Meng met in Hong Kong with an executive of Financial Institution 1 responsible for operations in the Asia Pacific region. During the meeting, Ms. Meng delivered a PowerPoint presentation written in Chinese, which was translated by an interpreter into English. Ms. Meng stated that she was using an interpreter to be precise in her language.
为解决新闻报道中的指控，华为要求和该金融机构（大家都知道是汇丰了，以后就写汇丰银行）的高级员工面对面会议。该会议于 2013 年 8 月 22 日（“8 月会议”）举行，当时孟晚舟在香港会见了负责亚太区域的主管。会议期间，女士孟晚舟做了一个用中文写的PowerPoint演示文稿，并由翻译翻译成英文。孟说翻译能够更准确地表达她的语言。
In her presentation, Ms. Meng stated, among other things, that Huawei’s relationship with Skycom was “normal business cooperation” and “normal and controllable business cooperation,” and she described Skycom as a “partner,” a “business partner of Huawei,” and a “third party Huawei works with” in Iran. Those statements were untrue because, as Ms. Meng knew, Skycom was not a business partner of, or a third party working with, Huawei; instead, Huawei controlled Skycom, and Skycom employees were really Huawei employees. It would have been material to Financial Institution 1 to know that Huawei controlled Skycom.
In addition, Ms. Meng stated that Huawei “was once a shareholder of Skycom” but had “sold all its shares in Skycom.” Those statements were untrue, because, as Ms. Meng knew, Huawei had “sold” its shares to an entity that Huawei controlled. Specifically, Huawei transferred Skycom shares from a Huawei subsidiary (Hua Ying) to another entity that was controlled by Huawei (Canicula). It would have been material to Financial Institution 1 to know that Skycom was transferred from one Huawei controlled entity to another.
此外，孟表示，华为“曾经是 Skycom 的股东”，但已“出售其在 Skycom 的所有股份”。这些陈述是不真实的，因为，孟知道，华为已将其股份“出售”给了华为控制的实体。具体而言，华为将 Skycom 的股份从一家华为子公司（华盈）转让给另一家由华为控制的实体（Canicula）。对汇丰银行来说，是否了解Skycom 从一个华为控制的实体转移到另一个实体的意义非常重大。
Finally, Ms. Meng stated that Huawei “operates in Iran in strict compliance with applicable laws, regulations and sanctions” and that “there has been no violation of export control regulations” by “Huawei or any third party Huawei works with.” These statements were untrue because Huawei’s operation of Skycom, which caused the Financial Institutions to provide prohibited services, including banking services, for Huawei’s Iran-based business while Huawei concealed Skycom’s link to Huawei, was in violation of the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Iranian Transactions and Sanctions Regulations, 31 C.F.R. Part 560. Moreover, during the Relevant Time Period, Huawei caused Skycom to conduct approximately $100 million worth of U.S.-dollar transactions through Financial Institution 1 that cleared through the United States, at least some of which supported its work in Iran in violation of U.S. law, including $7.5 million for Iran-based contractors from the U.K. staffing company to do work in Iran.
最后，孟表示，华为“在伊朗严格遵守适用的法律、法规和制裁措施”，“华为或与华为合作的任何第三方”“没有违反出口管制规定”。这些陈述是不真实的，因为华为对 Skycom 的运营导致汇丰银行为华为在伊朗的业务提供被禁止的服务，包括银行服务，同时华为隐瞒了Skycom 与华为的联系，这违反了美国财政部的外国资产控制办公室的关于伊朗交易和制裁条例，31 C.F.R.第560部分。此外，在相关时间段内，华为导致Skycom通过汇丰银行进行了价值约1亿美元的交易，这些交易的清算发生在美国，其中至少有部分支持其在伊朗的工作，违反了美国法律，包括为来自英国的人力承包商提供 750 万美元。
At no point during or after the August Meeting did Ms. Meng, who was aware of Huawei’s public statements about Skycom published by Reuters, retract or amend any of those statements. Moreover, Huawei’s Treasurer, who also attended the August Meeting, did not correct or amend any of the statements made by Ms. Meng.
在八月会议期间或之后的任何时候，孟尽管意识到了路透社发布的华为关于 Skycom 的公开声明，她都没有对之前她做出的声明做出任何撤回和修改。此外，华为的财务主管也参加了 8 月会议，也没有更正或修改孟女士的任何声明。
During the Relevant Time Period, Ms. Meng possessed a computer file that contained“Suggested Talking Points” about Huawei’s relationship with Skycom that closely tracked the untrue statements made during the meeting in Hong Kong. Specifically, that file contained the following text, written in Chinese: “The core of the suggested talking points regarding Iran/Skycom: Huawei’s operation in Iran comports with the laws, regulations and sanctions as required by the United Nations, the United States and the European Union. The relationship with Skycom is that of normal business cooperation. Through regulated trade organizations and procedures, Huawei requires that Skycom promises to abide by relevant laws and regulations and export controls. Key information 1: In the past — ceased to hold Skycom shares 1, With regards to cooperation: Skycom was established in 1998 and is one of the agents for Huawei products and services. Skycom is mainly an agent for Huawei.”
在相关时间段内，孟有一个电脑文档，其中包含了关于华为与 Skycom 关系的“建议谈话要点”，与香港会议期间的不实陈述密切相关。具体而言，该文件包含以下中文文本：“关于伊朗/Skycom的建议谈话要点的核心：华为在伊朗的业务符合联合国、美国和欧盟要求的法律法规和制裁。与Skycom的关系是正常的业务合作关系。华为通过受监管的贸易组织和程序，要求Skycom承诺遵守相关法律法规和出口管制。关键信息1：过去——不再持有Skycom股份。合作方面：Skycom成立于1998年，是华为产品和服务的代理商之一。 Skycom主要是为华为做代理。
Shortly after the August Meeting, Huawei prepared an English version of the PowerPoint presentation at Financial Institution 1’s request. Ms. Meng later arranged for a paper copy of that PowerPoint presentation to be delivered to the Financial Institution 1 executive in September 2013. The representations in the English version of the PowerPoint presentation closely tracked the ones Ms. Meng gave during the in-person August Meeting. After the August Meeting, and subsequent receipt of the PowerPoint presentation, Financial Institution 1 decided to continue its relationship with Huawei. The other Financial Institutions similarly continued their respective relationships with Huawei.
8 月会议结束后不久，华为应汇丰银行的要求准备了英文版的 PowerPoint 演示文稿。孟后来安排将该 PowerPoint 演示文稿的纸质副本于 2013 年 9 月交付给汇丰在8月会谈见到的高管。于是汇丰银行决定继续与华为的关系。其他金融机构同样继续与华为保持各自的关系。
这个案子给我们带来什么启示呢？究竟什么是合作伙伴，什么是持股控制？声明中提到了Canicula Holdings，这是一家在毛里求斯注册的离案公司，声明并没有进一步阐述华为是如何控股Canicula Holdings，而是主要从Skycom的董事会成员，华为员工任职，邮箱地址来阐述之间的控制关系。