Betting the Corporation: Compliance or Defiance? Compliance Programs in the Context of Deferred and Non-Prosecution Agreements - Corporate Pre-Trial Agreement Update - 2008

Abstract

In 2008, the U.S. Department of Justice (DOJ) entered into sixteen corporate pre-trial agreements (collectively deferred prosecution agreements (DPA) and non-prosecution agreements (NPA). This was a sixty percent decline from the forty agreements we saw in 2007. This brings to one hundred and twelve the number of agreements we have found from 1993-2008. Violations of the Foreign Corrupt Practices Act (FCPA) remained the predominant subject matter addressed by corporate pre-trial agreements with seven of the sixteen agreements resolving FCPA violations. In 2007, roughly a third of the agreements involved FCPA violations. In addition, we saw the first corporate pre-trial agreements resolving immigration work-site enforcement investigations into corporate targets. There were three work-site related corporate pre-trial agreements in 2008.

In 2008, every agreement contained some sort of corporate compliance reform provision - continuing a trend we have seen over the last few years. This trend is the focus of this update. Aside from building on prior observations, this piece attempts to draw empirical observations about the types of compliance programs that come out of corporate pre-trial agreements. The authors recognize there is no one-size fits all template for corporate compliance programs. But by examining compliance programs in the context of DPAs and NPAs, the authors strive to provide a picture of what types of compliance measures are negotiated by the DOJ and corporate targets to resolve internal control and other business deficiencies that resulted in criminal wrongdoing. We hope that this will provide some guidance for attorneys and other professionals who deal with compliance issues.

Keywords: deferred prosecution agreement, compliance, non-prosecution agreement, filip, holder, mcnulty, thompson, Department of Justice, DOJ, ethics