The Department of Justice's (DOJ) use of corporate pre-trial agreements--also known as deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs)--declined sharply last year after reaching an all-time high in 2007.
This is according to “Betting the Corporation: Compliance or Defiance?”, an article highlighting trends in the government's use of these new tools for fighting corporate misconduct, with which readers of this blog are undoubtedly familiar. (If not, see this post for a good overview.) DPAs and NPAs are also starting to show up in POGO's Federal Contractor Misconduct Database.
The article reports that the DOJ has entered into 112 corporate pre-trial agreements since 1993, most of them since 2003. In 2008, the DOJ entered into 16 DPAs and NPAs, a 60 percent decline from the 40 it entered into in 2007, but consistent with the 19 in 2006. Violations of the Foreign Corrupt Practices Act remained the predominant type of misconduct addressed in the agreements. Last year also saw the first corporate pre-trial agreements resolving immigration work-site enforcement investigations.
Every agreement in 2008, and three-fourths of DPAs and NPAs entered into over the past three years, contained some sort of corporate compliance reform provision. Over 40 percent of these agreements involved the appointment corporate monitors, the hot-button issue that brought the whole matter of corporate pre-trial agreements to POGO's attention in the first place.
What specifically concerned us was the lack of transparency and oversight in the process by which prosecutors enter into DPAs and NPAs with companies accused of wrongdoing. We were afraid that these agreements--particularly the corporate monitor aspect--would lead to rampant cronyism. Since then, however, we are happy to report that the DOJ has been making strides in improving the transparency and oversight of DPAs, NPAs and corporate monitor appointments.
-- Neil Gordon
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