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Conversations With... Washington, DC 20036 202.588.0302 Wlf.Org Winter 2016 Washington Legal Foundation ® Advocate for Freedom and Justice 2009 Massachusetts Avenue, NW Conversations With... Washington, DC 20036 202.588.0302 wlf.org Winter 2016 Inquiring into the Expanded Use of Deferred- Prosecution and Non-Prosecution Agreements The Honorable Jay B. Stephens that the government is exercising an The Honorable Larry D. Thompson operational role in managing private business are a few of the concerns In this edition of Washington Legal that can flow from the use of such Foundation’s Conversations With, agreements. The renewed focus on the Chairman of WLF’s Legal Policy the accountability of individuals and a Advisory Board, Jay B. Stephens, company’s cooperation in prosecuting directs a discussion with University its own employees could also affect of Georgia School of Law’s Larry D. the dynamic of negotiating and using The Honorable Jay B. Stephens Thompson on two pre-trial diversion such agreements. Chairman, mechanisms that federal prosecutors WLF Legal Policy Advisory Board frequently utilize in white-collar Finally, remembering that DPAs and Of Counsel, Kirkland & Ellis LLP criminal enforcement. NPAs are rooted and used in the context of a criminal investigation, The federal government’s use of not a civil or administrative action, deferred-prosecution agreements we should assess whether they meet (DPAs) and non-prosecution the purposes of the criminal law agreements (NPAs) related to or unnecessarily contribute to the investigations of business enterprises “overcriminalization” of conduct and has expanded significantly in the decisions in our society. past decade. Such agreements have The Honorable Larry D. Thompson implications for prosecution policy WLF discussed all of these issues and John A. Sibley Chair of Corporate and and the reach of federal enforcement more with Mr. Thompson, the former Business Law, University of Georgia School of Law agencies into business enterprises. Deputy Attorney General of the They also potentially shift the balance United States. Mr. Thompson draws of power between federal prosecutors upon his wealth of experience as a and private parties, particularly by private attorney, a U.S. Attorney, and extending the administrative regulatory general counsel of PepsiCo to discuss authority of enforcement agencies, the evolution and expanded use of by requiring continuing cooperative deferred-prosecution agreements and conduct from private businesses often non-prosecution agreements. through monitors, and by generally defining legal obligations and the Jay Stephens: Larry, can you briefly parameters of the criminal law without describe DPAs and NPAs and explain the oversight of the judiciary. their similarities and differences? DPAs and NPAs also have a Larry Thompson: In the context significant impact on public and private of a federal criminal investigation, companies, especially where the DPAs and NPAs are similar in that imposition of a monitor is involved. High the Department of Justice requires a costs, continuous external oversight business organization to do certain of business decisions, and a concern things or take certain actions, like INQUIRING INTO THE EXPANDED USE OF DEFERRED-PROSECUTION AND NON-PROSECUTION AGREEMENTS establishing or modifying a compliance Organizations memo that you issued as program, in exchange for the Department Deputy Attorney General of the United closing the investigation. DPAs typically States in 2003, the DOJ made scarce use of involve actual criminal charges being filed these devices. Was the 2003 memo aimed “The focus of my against the organization but then being at expanding their use? memo [the Thompson stayed and eventually dismissed. memo] was incenting Mr. Thompson: No, not really. And, you corporations and After a period of time, if the organization are correct about the limited use of DPAs fulfills its obligations under the agreement and NPAs, before and even during my tenure business organizations with the Department, NPAs allow a business as Deputy Attorney General. In fact, even to cooperate with the organization to avoid the specter of criminal today some of the litigating divisions of the government as much as charges altogether, but again only after Department use them only sparingly, namely possible. Cooperation the organization has fulfilled its obligations the Antitrust and Environment and Natural was key.” under its agreement with the Department Resources divisions. I do not believe the and at the end of a specified period of time. Principles of Federal Prosecution of Business Also, as Judge Leon’s opinion in the relatively Organizations issued during my tenure even recent U.S. v. Fokker Services B.V. case made mentioned DPAs or NPAs. clear, DPAs require court approval while NPAs do not. The government always retains My memo did refer, for the first time, to the authority to not prosecute a case. [79 F. pretrial diversion for a corporation. Pretrial Supp. 3d 160 (D.D.C. 2015)] diversion has been available for use by prosecutors for a long time. Under pretrial Mr. Stephens: How do DPAs and NPAs differ diversion, in an appropriate case, a matter from a traditional plea-bargain agreement? is diverted or taken out of the criminal system subject to an agreement on certain Mr. Thompson: DPAs and NPAs are terms and conditions with the government. dramatically different. In a plea-bargain The focus of my memo was incenting agreement, the defendant business corporations and business organizations to organization admits to criminal wrongdoing cooperate with the government as much as on the record. A court will typically possible. Cooperation was key. require a high-ranking official to enter an appearance and admit to the organization’s DPAs and NPAs were first discussed in the wrongdoing. This act alone not only results 2008 revision of the Principles because of in tremendous embarrassment, it also the specter of collateral consequences. The leads to sensational publicity and serious Department was appropriately concerned reputational harm. More importantly, with the need to avoid harm to innocent third the collateral consequences of a criminal parties like shareholders and employees conviction for a business organization can as much as possible when a business be devastating, including the possibility of organization is charged with a crime. extinction. A business organization that has been convicted of a crime faces damaging Mr. Stephens: As you note, that memo admissions in civil suits, license suspensions, associated prosecutors’ use of pre-trial government program debarment, and diversion with voluntary cooperation. Did government benefit exclusions. it inspire the type of increased cooperation that DOJ sought from corporations? Do © 2016 Washington Legal Foundation Mr. Stephens: Prior to the Principles such pre-trial diversion mechanisms remain of Federal Prosecution of Business an effective “carrot” for cooperation? 2 Conversations With... Washington Legal Foundation Winter 2016 Mr. Thompson: From the standpoint of a even inappropriately insist on the firing former prosecutor who dealt with many or removal of an employee whose role in white-collar cases, I can tell you that real and the matter under investigation is not fully meaningful cooperation has been sometimes understood by management. Of course, in difficult and many times elusive—despite the the past, privilege waivers were routinely “The coercive effect of obvious benefit to a business organization used as a condition of cooperation in formal prosecutors’ sometimes when it is not criminally charged. I actually pre-trial diversion agreements, DPAs, and leveraging their do not have a full understanding of why this NPAs. tremendous bargaining happens. power under the threat Mr. Stephens: The effectiveness of a Many lawyers have legitimate privilege company’s corporate compliance program of criminal prosecution concerns when attempting to engage and has become a major factor in the use of DPAs in an attempt to cooperate with the government. I have seen and NPAs, and DOJ’s crafting of their terms. secure some type of a few others who were more concerned with Are prosecutors in the best position to judge inappropriate or ill- protecting individuals inside the business what programs are “effective,” and then to conceived cooperation organization and did not understand that prescribe measures in these agreements to is something counsel their professional obligations went to address the shortcomings? the entity and not individual potential should always be aware targets. However, at the end of the day, Mr. Thompson: While it is obviously good of and try to avoid.” authentic and real cooperation, where the that prosecutors insist on an increased focus government understands the facts, is almost on compliance and ethics programs from always a good thing for an organizational organizations with problems, what exactly client. Then, if the situation warrants it, constitutes an effective compliance and counsel should work diligently to negotiate ethics program is often beyond the expertise and structure an appropriate and balanced or core competency of prosecutors. The agreement with the government, whether it Department’s Criminal Division understands be a pre-trial diversion agreement, DPA or this issue and has recently brought on an NPA. individual with expertise in compliance and ethics to help it evaluate these programs. Mr. Stephens: What are the negative ramifications of using pre-trial diversion as However, we must avoid a cookie-cutter an incentive for corporate
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