Understanding Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements

Understanding Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements

The government has the power to prosecute corporations for crimes, as well as individuals who engage in corporate wrongdoing. By allowing the prosecution of corporations, the Department of Justice (DOJ) seeks to promote public interests, such as:

  • Protecting the integrity of our economic and capital markets by enforcing the rule of law;
  • Protecting consumers, investors, and business entities against competitors who gain unfair advantage by violating the law;
  • Preventing violations of environmental laws; and
  • Discouraging business practices that would permit or promote unlawful conduct at the expense of the public interest.

United States Attorney’s Manual (USAM) §9-28.010. The USAM allows for corporate criminal cases to be resolved by non-prosecution agreements or deferred prosecutions agreements. USAM §9-28.200.

Corporate Non-Prosecution Agreements

A corporate non-prosecution agreement (NPA) is an agreement between a prosecutor and a corporation to avoid prosecution so long as certain conditions are met. In a NPA the corporation agrees to cooperate with the government and take remedial actions to correct its alleged wrongdoing. Typically a NPA does not require an admission of wrongdoing by the corporation.

Corporate Deferred Prosecution Agreements

A deferred prosecution agreement (DPA) is an agreement between a prosecutor and a  corporation that suspends prosecution so long as certain conditions are met. The requirements of a DPA could include paying fines, implementing corporate reforms, and cooperating with the investigation.

Incentives for Entering into a NPA or DPA

A corporation facing prosecution may consider entering into a NPA or DPA for a number of reasons. Incentives to negotiate an agreement include: to protect the company’s public image, to restore the integrity of a company’s operations, to preserve the financial viability of the corporation, and to prevent the government from pursuing charges.

Negotiating the terms of a corporate NPA or DPA is best done with a white collar criminal defense attorney representing the corporation.

The government has a number of incentives to enter into an agreement that avoids prosecution. To be certain, the conviction of a corporation would have an impact on innocent third parties. The DOJ’s new policy on corporate resolutions seeks to avoid a situation where punishment and penalties are piled on by multiple agencies and to mitigate the possible collateral consequences of corporate prosecution. An alternative to corporate criminal prosecution serves to minimize unintended consequences, such as corporate financial collapse and the related impact on employees, investors, pensioners, and other stakeholders.

Further, indictment or the threat of indictment is often enough to encourage a corporation to take remedial steps to immediately correct or end criminal misconduct. Also, the costs of prosecuting a case through trial is quite high. So long as the conditions of a NPA or DPA are met, the government avoids the cost of litigation.

Negotiating the Terms of a NPA or DPA

If you or your corporation are under investigation for, or have been indicted under, allegations of corporate criminal activity, you need an attorney who knows how to defend your rights and when advantageous, to negotiate a corporate Non-Prosecution Agreement or corporate Deferred Prosecution Agreement.

Here at Ashley D. Adams, PLC we zealously defend all types of corporate criminal cases. Ashley D. Adams is a former fraud prosecutor with the United States Attorney’s Office. She understands how prosecutors operate and the best tactics to negotiate favorable NPA or DPA terms. Given her prior work, she also has a longstanding and positive relationship with the U.S. Attorney’s Office, the Attorney General’s Office, and the Department of Justice.

Contact us or call now (480) 219-1366 to schedule a case evaluation.