On June 5, 2017, the United States’ Attorney General Jeff Sessions issued a Memorandum to all Department of Justice components and ninety-four (94) United States Attorneys’ Offices prohibiting settlement payments to non-governmental, third-party organizations who were neither victims nor parties to the lawsuits. This reverses a practice that was encouraged during the Obama administration requiring companies to donate large amounts of money to outside groups as part of criminal and civil settlement agreements with the federal government.

“Effective immediately, Department attorneys may not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or declining prosecution in a criminal matter, that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.”  The new policy does not apply to payments that directly remedy the “harm that is sought to be redressed.” The policy also makes an exception for payments for legal or other professional services in connection with the case, and for payments expressly authorized by statute.

One of the emerging issues for the shipping industry will be to see how this policy is applied to criminal prosecutions under the Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901, et seq.  APPS is the U.S. codification of MARPOL 73/78 and it has been the regular practice of the Department of Justice to require significant community service payments to non-governmental third-party organizations.  The APPS prosecutions in the United States are almost always premised on record keeping violations, as it is clear the US courts lack jurisdiction over any unrecorded discharges outside of U.S. waters. It remains to be seen whether the Attorney General’s new policy will be strictly applied by the Department of Justice and whether non-governmental and/or non-profit groups with no relation to the cases will continue to be in-line to receive community service payments (or not).

To read the full text of Attorney General Sessions’ Memorandum, please click here.

For more information about MARPOL, APPS, and/or the Attorney General’s Memorandum, please do not hesitate to call on us at info@chaloslaw.com.