The Champion

January - February 2016 , Page 36 

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If You Give a Judge a Case: Judicial Oversight of Deferred Prosecution Agreements

By Jeffrey B. Coopersmith and Ashley L. Vulin

The government has been conducting a criminal investigation of a corporate client, with an indictment seemingly imminent. After an extensive investigation and prolonged negotiations, a potential way out appears: the government says it is willing to enter into a deferred prosecution agreement (DPA) instead of demanding a guilty plea or proceeding with an indictment. While far from an ideal outcome, such an agreement would benefit the client by avoiding certain collateral consequences as well as the high costs and risks of criminal litigation. The government is pleased with this outcome because it is able to issue a press release showing that it is tough on corporate criminal conduct and announce a large fine and perhaps restitution. The defense attorney works through the details of the agreement and settles on a monitoring period, compliance protocols, and a fine that the client can tolerate. It is bad, but it could be worse. 

As the document is signed and filed, defense counsel looks a

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