In cases over banks' money laundering controls, for example, criminal penalties have skyrocketed since 2010, when Wachovia forfeited $110 million to resolve charges that it willfully failed to establish a compliance program.
By comparison, JPMorgan paid $1.7 billion earlier this year to resolve criminal charges over its failure to maintain an effective anti-money laundering program in connection with its business with convicted Ponzi schemer Bernard Madoff.
A BNP settlement of $10 billion would be more than 14 times higher than the $667 million Standard Chartered paid to resolve sanctions violations in 2012, the highest fine for such violations to date.
A former DOJ official said: "It's almost like more is law now."
Sources familiar with the BNP settlement talks say there are clear justifications for a fine of as much as $10 billion, as well as other severe potential penalties, such as suspending BNP's ability to process dollar payments.
They point to the sheer volume of the suspect transactions by BNP that allegedly violated U.S. sanctions: about 10 times larger than other banks which have resolved similar cases, according to a person familiar with the matter. A second source said the high level of senior management knowledge of the conduct is another contributing factor.
A third consideration was the bank's poor cooperation with the governments investigation, an element that also figured in Credit Suisse's guilty plea and record fine.
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Cases involving violations of U.S. sanctions also give prosecutors wide latitude to assess criminal penalties, prosecutors and defense lawyers said, since they are done as forfeitures rather than as fines calculated under sentencing guidelines.
When Dutch lender ING Bank agreed to forfeit a then-record $619 million in 2012 over illegal transactions with Cuban and Iranian entities, court documents said the bank moved more than $2 billion on behalf of sanctioned entities. A deferred prosecution agreement that explained the fine said only that ING acknowledged that "at least" $619 million was involved in the transactions described.
In general, sentencing guidelines provide a range of things to consider when calculating a corporate penalty, including the pervasiveness of the conduct and whether senior management participated in it, with the ability to discount a fine for companies who cooperate in an investigation and fix their problems.
But even the guidelines offer wide ranges to determine penalties, leaving prosecutors with the discretion to charge the case in a way that gets them to a penalty they seek.