When deciding to offer a cooperation agreement or a non-law enforcement agreement, federal prosecutors are guided by the U.S. Attorney`s Manual, which includes a list of three factors to consider. Two of these factors are not surprising: „the value of a person`s cooperation“ and the „relative guilt of the person in connection with the crime(s) being investigated or prosecuted and his or her criminal history.“ A deferred prosecution agreement, or „DPA,“ is a mechanism for resolving a case against a company that is essentially an unofficial form of probation. Although they are typically used to settle a criminal case, civil law enforcement agencies such as the SEC have also begun to use them. [201] Argentina also allows somewhat similar „effective cooperation agreements,“ and Brazil authorizes leniency agreements under its anti-corruption law. Government counsel should make sentencing recommendations based on an individualized assessment of the facts and circumstances of each case, as well as the background and characteristics of the defendant, without prejudice to the race, religion, sex, ethnic origin, national origin, sexual orientation or political association, activities or beliefs of the accused. [89] Press release, U.S. Dep`t of Justice, Chipotle Mexican Grill agrees to pay a $25 million fine and enter into a deferred prosecution agreement to lay charges related to foodborne illness outbreaks (21. April 2020) www.justice.gov/opa/pr/chipotle-mexican-grill-agrees-pay-25-million-fine-and-enter-deferred-prosecution-agreement („Chipotle Press Release“). Whenever a government prosecutor refuses to initiate or recommend federal prosecutions, he or she must ensure that his or her decision and the reasons for doing so are communicated to the relevant investigative body and any other interested authority, and should also be reflected in the office`s records to ensure that the resolution of cases brought to the attention of the government prosecutor for possible prosecution. but this does not result in prosecution by the federal government. Where prosecutions are refused in serious cases provided that other authorities take action, appropriate measures should be taken to ensure that the matter receives their attention.
[updated February 2018] In addition to the CCA, Bradken entered into a compliance agreement with the Navy and signed a separate settlement agreement to resolve claims under the False Claims Act with the DOJ, who acted on behalf of the Navy. [83] This latest settlement agreement required Bradken to pay $10,896,924, including $5,448,462 as a refund. [84] In this way, the Bradken DPA is a remarkable example of how the DOJ enforces its own policies and prevents „accumulation“ in situations where the same behavior can be handled by multiple components of the DOJ. [85] Unless otherwise stated below, the government attorney may, with the approval of supervision, enter into a non-prosecution agreement in exchange for the cooperation of an individual if, at his or her discretion, the person`s timely cooperation appears necessary for the public interest and other means of obtaining the desired cooperation are not available or would not be effective. DPAs and NPAs typically create a constant requirement to disclose details of newly discovered evidence of potential violations of the law. Traditionally, these provisions only required the disclosure of „credible evidence“ for specific violations of the law, and almost all DPAs or NPAs since 2011 – including all APAs or NPAs related to the FCPA – have included a variant of this reporting requirement that can lead to additional criminal investigations and termination of the existing agreement. [242] Government counsel may, in an appropriate case, enter into an agreement with a defendant that, if the defendant pleads guilty or does not have a candidate for an alleged offence or a minor or related offence, does not lay further charges or requests the dismissal of other charges, he or she will take a particular position with respect to the sentence to be imposed. or take other action. [99] See e.B. Apotex DPA, loc. cit.
Note 14, paragraph 10 („If, during the term of this Agreement, the United States determines, in its sole discretion, that Apotex […] does not cooperate. Apotex will then be prosecuted. BHBM Tax DPA, loc. cit. footnote 65 to 6 („If during the term of the contract . the Bank does not cooperate as set out in the Agreement. the Bank and Hapoalim (Latin America) S.A. will be sued thereafter. »).
Until 2008, there were few or no DOJ guidelines on when the use of a DPA/NPA is appropriate, what behavior justifies a DPA verse and an NPA, and what conditions should be included in a DPA/NPA agreement. The year 2008 saw the beginning of what appeared to be some uniformity in the terms of the DPAs.In 2008, there was also increased media attention in relation to several DPAs as well as congressional hearings and other legislative activities related to DPAs (although there was no formal legislation). On June 25, 2020, Alcon Pte Ltd – a former subsidiary of Novartis AG, a Swiss-based global pharmaceutical company and a current subsidiary of Alcon Inc., an independent multinational ophthalmology company following its spin-off from Novartis in April 2019 – entered into a three-year DPA with the fraud division of the DOJ and the United States. New Jersey County District Attorney`s Office. [37] The agreement resolved allegations that Alcon Pte Ltd conspired from 2011 to 2014 to violate the FCPA`s accounting and record-keeping provisions by providing unreasonable economic benefits to Vietnamese medical professionals („PSCs“). [38] The three-year DPA is extended by one year in the event of a violation. [58] However, Apotex must continue to cooperate with the DOJ until „all investigations and prosecutions, whether against former employees of the Company or other natural or legal persons arising out of the conduct described in the Agreement, are completed, whether or not completed within the three-year period“ of the DPA. [59] Although data protection authorities often impose cooperation obligations that go beyond the terms of the agreements themselves, the inclusion of this language in this context suggests that this specific DOJ antitrust investigation in the generic industry could continue for years.
Despite aggressive tendencies by prosecutors in today`s tense legal landscape, there are many ways for white-collar offenders to minimize or avoid sanctions, including the use of deferred, non-criminal agreements (APDs and NPAs). .