Thursday, August 21, 2008

Deferred and Non-Prosecution Agreements

A new website from the University of Virginia School of Law provides an excellent resource for research regarding deferred and non-prosecution agreements with corporations. The collection allows individuals to search by company name, USAO and date.
This library collection contains scanned federal organizational prosecution agreements. It is intended to provide a resource for research concerning federal prosecution of organizations. The Web site was created by Professor Brandon Garrett ( and Jon Ashley ( and will be periodically updated to reflect additional agreements or other developments. We welcome any inquiries or feedback, including questions, corrections or suggestions for additional material to be added to the collection. The agreements, as indicated below, may be displayed by name of entity, jurisdiction or date. Additional information concerning organizational prosecution agreements is in a 2007 Virginia Law Review article.
You can access the collection here. The article referenced above is a 2007 piece by Professor Brandon L. Garrett entitled "Structural Reform Prosecution," 93 Va. L. Rev. 853 (2007).
In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors have adopted a bold strategy under which dozens of leading corporations have entered into demanding settlements, including AIG, America Online, Boeing, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co., and Monsanto. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies as well as alternative methods prosecutors can use to pursue structural reform. To better understand what the DOJ accomplished by choosing to pursue structural reform and then doing so at the charging stage, I conducted an empirical study of the terms in all agreements the DOJ has negotiated to date. My study reveals imposition of deep governance reforms, consistent with the purposes of the Sentencing Guidelines, but also some indications of overreaching, if perhaps not abuse of prosecutorial discretion. I conclude by framing the issues that such prosecutions raise where, given the breadth of prosecutorial discretion and the deferential, limited nature of judicial review, the DOJ's emerging structural regime for deterring organizational crime raises important questions for all actors involved and affected.
You can view the article here.

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