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Compliance Tips from Deferred Prosecution Agreements
In recent years, increasing numbers of large corporations have, in the hope of avoiding a conviction and all the ramifications a conviction entails, entered into Deferred Prosecution Agreements (DPAs) with the Department of Justice (DOJ). Much has been written about the lack of bargaining power companies have in negotiating these deals, and about the onerous nature of some of their terms. In this article, we suggest that companies can use the DPAs entered into by others to their advantage by treating them as guides to assist them in formulating their own compliance programs. Not only should this result in strengthened programs, but should a compliance problem nevertheless arise, having a 'government-issued' program in place could provide a company with a strong argument that it has done the most it can in formulating an effective program and hence should not be subject to prosecution.
Reforms Specific to Industry Sectors
Under the January 2003 DOJ memorandum entitled 'Principles of Federal Prosecution of Business Organizations,' better known as the Thompson Memorandum, one element the DOJ considers when evaluating whether to indict a corporation is whether the corporation's compliance program is 'adequately designed for maximum effectiveness.' How can one determine whether a compliance program is designed for maximum effectiveness? Resources are not unlimited, and a company needs to determine which of the myriad of different compliance mechanisms available should be put into place.
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