FORTHCOMING STUDY: Deferred and Non-Prosecution Agreements Decline 60%

NACDL Update – Feb. 5, 2009

The National Law Journal reports, according to a forthcoming study conducted by Lawrence D. Finder, Ryan D. McConnell, and Scott L. Mitchell, that the number of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) between the Department of Justice and corporations has declined by 60% in 2008. This is a sharp drop from a historic high of 40 DPAs and NPAs in 2007 to only 16 DPAs and NPAs in 2008. The study also reports a significant decline in the inclusion of privilege-waiver provisions in DPA/NPAs.

The study sets out some significant findings including, but not limited to, the following:

  • FCPA violations were the subject 7 of the 16 DPA/NPAs entered into in 2008
  • Immigration work-site enforcement investigations had their DPA/NPA debut in 2008
  • 3 of the 16 DPA/NPAs dealt with immigration work-site enforcement investigations
  • All 3 contained some type of corporate compliance reform provision
  • Decline in privilege-waiver provisions:
    • In 2008 – 2 DPA/NPAs contained waiver provisions
    • In 2007 – 3 DPA/NPAs contained waiver provisions
    • From 2003-06 – About half of the 47 DPA/NPAs contained waiver provisions
  • Three-year upward trend in remedial compliance measures:
    • Of the 75 DPA/NPAs over the last three years, more than 75% contain such measures
    • In 2006 – 13 DPA/NPAs contained remedial compliance measures
    • In 2007 – 29 DPA/NPAs contained remedial compliance measures
    • In 2008 – 16 DPA/NPAs – i.e. 100% – contained remedial compliance measures

The National Law Journal article discussing the study is available here.

An article written by Finder, McConnell, and Mitchel, about the study is available here.

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