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Have Corporate DPAs Become Less Certain and Beneficial After Boeing?
Corporate deferred prosecution agreements (DPAs) have become a key part of white-collar criminal enforcement. With a DPA, a company can resolve a criminal investigation without a guilty plea, while the government gets remediation of misconduct and a corporate admission of wrongdoing. These benefits have encouraged other countries to adopt, or consider adopting, similar arrangements, even where DPAs do not fit neatly in existing criminal procedures, such as France, England and Switzerland.
Corporate DPAs have also generated criticism. The critics say that: i) DPAs have been overly lenient to companies, and have contributed to prosecutors’ willingness to settle with companies rather than aggressively pursue individual wrongdoers; ii) DPAs have been negotiated in secrecy and have failed to protect the rights of victims of corporate misconduct; or iii) DPAs have led not to promised corporate reform but, too often, to cosmetic changes and corporate recidivism due to inadequate sanctions and oversight. Companies still regularly enter into DPAs with the Department of Justice (DOJ), but their benefits may have become less clear and certain over time.
The January 2021 DPA between the Boeing Co. (Boeing) and DOJ illustrates the many complications that may flow from a corporate DPA. The Boeing DPA came after two plane crashes that were attributed to a software design flaw and a resulting criminal investigation. Pursuant to the DPA, the company admitted to making false and misleading statements to the Federal Aviation Administration (FAA).
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