DOJ Non-Prosecution Agreements: What You Need to Know

Non-prosecution agreements (NPAs) have become a common tool used by the Department of Justice (DOJ) to resolve corporate criminal investigations. In fact, according to a recent report, over 90% of federal corporate investigations are now resolved through either a NPA or deferred prosecution agreement (DPA). But what exactly are NPAs, and how do they work?

What is a DOJ NPA?

An NPA is a formal agreement between the DOJ and a company in which the DOJ agrees not to prosecute the company for certain alleged criminal conduct in exchange for the company’s cooperation with the government’s investigation. Typically, an NPA will require the company to admit to certain facts, cooperate fully with the government’s investigation, pay a fine or penalty, and implement remedial measures to prevent future misconduct.

Why Do Companies Agree to NPAs?

For companies facing a criminal investigation, the prospect of a criminal conviction can be devastating. An NPA allows the company to avoid a criminal conviction and the collateral consequences that come with it, such as loss of reputation, exclusion from government contracts, and potential bankruptcy. Additionally, companies may see NPAs as an opportunity to demonstrate cooperation with the government and avoid lengthy and expensive litigation.

What Are the Risks of NPAs?

While NPAs can be an effective way for companies to resolve criminal investigations, they are not without risks. For one, companies must be willing to admit to certain facts, which can be used against them in future civil litigation. Additionally, because NPAs often require the company to cooperate fully with the government’s investigation, the company may be required to waive attorney-client privilege and turn over confidential documents and communications.

Critics of NPAs argue that they allow companies to avoid true accountability for their actions and can be used by prosecutors as a way to simply extract fines and penalties without real reform. Others argue that NPAs, because they are kept confidential, can undermine public trust in the justice system.

Conclusion

DOJ non-prosecution agreements can be an effective way for companies to resolve criminal investigations, avoid a criminal conviction, and demonstrate cooperation with the government. However, they are not without risks, and companies must carefully consider the potential consequences before agreeing to one. As with any legal agreement, it is important for companies to work closely with experienced counsel to ensure that they fully understand their rights and obligations under the agreement.