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Deferred Prosecution Agreements: What Questions Should We Be Asking?
In the post-Enron era, corporate counsel are seeing more government investigations that lead to 'deferred prosecution agreements' (DPAs). In these arrangements, the government formally accuses a company of criminal conduct, but agrees to hold the prosecution in abeyance pending the company's efforts to make amends. These cases include such well-known names as KPMG, Computer Asso-ciates and Bristol Myers Squibb.
Why are these settlements suddenly coming onto the scene? In a sense, they are not entirely new. The reality of the corporate world is that major companies simply do not go to trial on criminal matters. Before DPAs, there were various forms of consent decrees, settlement agreements and corporate integrity agreements. The latest variation comes partly from a reference in the Thompson Memorandum advising federal prosecutors to consider this tool. From the government's perspective, these agreements provide enormous ongoing leverage: The company has agreed to what the government wants, it has admitted on the record that it engaged in wrongdoing, and any violation allows the government to use the company's admissions without new charges being filed. Companies avoid the uncertainty of trial, destructive publicity and the diversion of management's attention that comes with battling criminal charges. But what are the implications of this trend and the questions we should be asking?
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