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Judicial Oversight of Corporate Deferred Prosecution Agreements

By Jodi Misher Peikin and Peter Janowski
April 02, 2015

Earlier this year, the Department of Justice (DOJ) and a subsidiary of a Dutch aerospace technology company, Fokker Services B.V. (Fokker), reached an agreement to resolve charges that the company had conspired to unlawfully export goods originated in the United States to Iran, Burma, and Sudan ' countries on the U.S. sanctions list. The terms of the agreement were unremarkable: Fokker would pay a fine equal to the profits it earned in the unlawful export transactions, implement a compliance program, and comply with U.S. export laws for 18 months. If Fokker met the terms of the deferred prosecution agreement (DPA) for the period of deferral, the criminal charges that were to be filed in federal court along with the DPA would be dismissed. As is the case for virtually all corporate prosecutions in the United States, the matter appeared to have been resolved by settlement.

United States District Judge Richard Leon of the District of D.C. had a different view. In United States v. Fokker Services B.V., ' F. Supp. 3d ', 2015 WL 729291 (D.D.C. Feb. 5, 2015), Judge Leon rejected the terms of the DPA. In his view, the agreement did not impose a sufficient punishment for the level of misconduct engaged in by the company. The decision has obvious effects on the government's case against Fokker, but it also could have repercussions that extend far beyond the case, including the potential to alter DOJ's policy on deferred prosecution agreements; the creation of critical uncertainty for white collar defense practitioners; and the raising of interesting questions about the role of the judiciary in corporate criminal negotiations and settlements.

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