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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.

Faced with such pressure, corporations have, in some cases, assumed the role of a second prosecutor and paid billions of fees and costs to obtain the privilege of paying billions in fines. Caught in the crucible of unrelenting prosecutorial pressure, corporations have pled guilty or admitted wrongdoing and suffered irreparable damage to their reputations in situations where wrongdoing likely did not occur and could not have been proven simply to bring the investigation to an end. Many of the costs the corporation sought to avoid are incurred anyway due to strong indemnification laws, dramatically expanded compliance departments, endless investigations and out of control corporate monitors.

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