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Deferred Prosecution Agreements: Ray of Hope or Guilty Plea by Another Name?
By Joan McPhee
Prosecutors have turned increasingly to deferred prosecution agreements in recent years to resolve major corporate criminal disputes. But the name may promise more than the resolution delivers.
Over the last several decades, the arc of corporate criminal prosecutions has trended steadily and relentlessly toward ever more expansive corporate criminal liability and increasingly harsh, often draconian, punishment. The demise of the once- preeminent accounting firm Arthur Andersen LLP stands as perhaps the paradigmatic example of both the breadth of corporate criminal liability — more than 95 percent of the firm’s employees had no involvement in the alleged misconduct that led to the firm’s indictment — and the severity of the potential punishment. Notwithstanding the U.S. Supreme Court’s subsequent reversal of Arthur Andersen’s conviction, the indictment alone effectively delivered a “corporate death sentence” to the firm, and Arthur Andersen in fact dissolved in the wake of the criminal
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