The Department of Justice (DOJ) has increasingly relied on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to resolve allegations of criminal misconduct against corporate entities.1 Lanny Breuer, the former Assistant Attorney General for the Criminal Division, extolled the virtues of DPAs and NPAs for giving prosecutors an alternative to the "sledgehammer" of indictment versus "just walk[ing] away."2
While DPAs and NPAs often serve the interests of both the DOJ (collecting substantial financial penalties and imposing remedial compliance, auditing, and monitoring requirements) and corporate defendants (avoiding the stigma of a "full fledged" criminal prosecution and the collateral consequences of a conviction), there is a concern that prosecutors will overreach in negotiating DPAs and NPAs. A recent decision by Judge John Gleeson in the Eastern District of New York confirms that there is judicial oversight of the process and limits to what prosecutors can seek from corporate defendants, and suggests that other judges may take a more active role policing those limits in the future.
