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Deferred Prosecution (DPA) and Corporate Integrity Agreements (CIA) have been in widespread use in the U.S. now for nearly two decades. The motivation for adopting such agreements was understandable at the time. They represented a way to leverage limited government resources by procuring effective corporate cooperation in investigations, spared corporate entities and their shareholders from undue collateral damage associated with a corporate prosecution, and they assisted in bringing individual actors who engaged in criminal misconduct to justice, thus furthering the goal of deterrence.

Undoubtedly, there have been cases in which a DPA resolution reflected the right result and helped advance the cause of justice. However, the past two decades of experience with such agreements has also revealed their limitations and exposed serious abuses. The government has been explicit in its demands that corporate cooperation requires that scalps be delivered. The November 2018 Rosenstein Announcement, although it purported to be a modification of this principle, reaffirmed that corporate cooperation credit requires that “every individual who was substantially involved in or responsible for” the criminal conduct be identified by the corporation.

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