Category Archives: Prosecutorial Diversion: DPAs and NPAs

DOJ Issues First FCPA Deferred Prosecution Agreement Under New Guidelines

by Jay Holtmeier, Kimberly A. Parker, Christopher Cestaro, and Erin G.H. Sloane

Left to right: Jay Holtmeier, Kimberly A. Parker, Christopher Cestaro, and Erin G.H. Sloane (photos courtesy of WilmerHale)

WHAT YOU NEED TO KNOW:

The DOJ entered into its first deferred prosecution agreement (“DPA”) for violations of the Foreign Corrupt Practices Act (“FCPA”) since the February 2025 Executive Order pausing FCPA enforcement.
The DPA provides further evidence that the DOJ may scrutinize conduct in Latin America more closely and highlights the risks of entering into joint venture arrangements, particularly in industries and geographies where there are corruption risks.
The DPA also demonstrates that the DOJ will likely continue to look to provide more favorable terms to companies that implement remediation, have a robust compliance program, and agree to report to the DOJ regarding the state of their compliance program.

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A Step Towards Transparency Or The Devil Is In The Detail? Analysing The Effectiveness Of The SFO’s New Corporate Guidance

by Jonah Anderson, Neill Blundell, Anneka Randhawa, and Phil Taylor

From left to right: Jonah Anderson, Neill Blundell, Anneka Randhawa and Phil Taylor (photos courtesy of White & Case LLP)

More than a decade ago, the concept of the Deferred Prosecution Agreement (DPA) became part of UK law. Ever since, there has been considerable uncertainty as to exactly what conditions a company needs to meet in order to be given the chance to enter into a DPA. Continue reading →

UK Serious Fraud Office Issues New Self-Reporting and Corporate Cooperation Guidance

by Lloyd Firth and Frederick Saugman

Left to right: Lloyd Firth and Frederick Saugman (photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

On 24 April 2025, the UK Serious Fraud Office (SFO) issued new guidance to encourage companies to self-report suspected corporate wrongdoing. The guidance states that self-reporting, combined with full cooperation with the SFO’s investigation will, absent exceptional circumstances, lead to the SFO inviting the company to commence Deferred Prosecution Agreement (DPA) negotiations.[1] While the guidance is a welcome recognition that companies crave certainty of outcome in their dealings with the SFO and a sign of the agency’s increased pragmatism, in practice it is unlikely to move the needle for companies on notice of suspected wrongdoing facing the critical strategic decision of whether and when to self-report.

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U.S. Attorney Office “Whistleblower” Programs Sow Confusion and Pose Risks to Corporate Whistleblowers

by David Colapinto and Geoff Schweller

Left to right: David Colapinto and Geoff Schweller.(Photos courtesy of Kohn, Kohn & Colapinto LLP)

In recent weeks, a number of U.S. Attorneys’ Offices (USAOs) across the country have rolled out “Whistleblower Pilot Programs” offering the potential of non-prosecution agreements in exchange for voluntary self-disclosure of criminal conduct by participants in non-violent offenses. These “whistleblower” programs, announced within the same timeframe as the Department of Justice’s new Corporate Whistleblower Awards Pilot Program, can sow confusion among would-be-whistleblowers as well as attorneys and pose significant risks to corporate informants as these Pilot Programs differ greatly from other well-known corporate whistleblower programs, such as the Securities and Exchange Commission (SEC) Whistleblower Program.

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Balancing Victim Compensation and Efficiency in Non-Trial Resolutions: A Comparative Perspective from the International Academy of Financial Crime Litigators

by Stéphane Bonifassi, Lincoln Caylor, Grégoire Mangeat, Léon Moubayed, Jonathan Sack, Andrew Stafford K.C., Wolfgang Spoerr, and Thomas Weibel

Top left to right: Stéphane Bonifassi, Lincoln Caylor, Grégoire Mangeat, Léon Moubayed. Bottom left to right: Jonathan Sack, Andrew Stafford K.C., Wolfgang Spoerr, and Thomas Weibel. (Photos courtesy of authors)

Introduction

Negotiated settlements for financial crimes offer a practical approach to resolving cases without lengthy trials. However, they pose a complex dilemma: how to balance efficiency with the need for victims to have a meaningful role in the proceeding and achieve adequate victim compensation. Across various jurisdictions, the approaches to non-trial resolutions reflect differing priorities, with some countries leaning towards expediency and others emphasizing victim rights. This is why the International Academy of Financial Crime Litigators published a working paper on the topic. This piece explores the current state of how victims of financial crime are being compensated in non-trial resolutions across different legal jurisdictions. Furthermore, it identifies some of the challenges and trade-offs lawmakers face when trying to infuse an optimal amount of victim involvement into the settlement process, providing suggestions on how victims of financial crime can be better heard and compensated in settlement procedures.

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Keeping Deferred Corporate Charges Deferred: Some Dos and Don’ts

by John Savarese, Randall Jackson, and Michael Holt

Left to right: John Savarese, Randall Jackson, and Michael Holt (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

At the heart of every white-collar deferred prosecution agreement (DPA) is the deferral of filed criminal charges and a promise by DOJ to dismiss those charges at the end of a fixed term if the company has lived up to its remedial and other commitments. Breaches of these agreements are rare. But DOJ’s recent letter advising the U.S. District Court for the Northern District of Texas that Boeing breached its obligations under a January 2021 DPA (entered into with DOJ to resolve criminal charges relating to Boeing’s mishandling of FAA reporting concerning its 737 MAX aircraft following fatal crashes of two of those planes) provides a telling reminder of the critical need for companies to design and carry out an effective and comprehensive plan to abide by all terms established under a DPA.

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Head of DOJ Criminal Division Announces Voluntary Self-Disclosure Program for Individuals at PCCE’s 10th Anniversary Conference

On April 15, 2024, the NYU Law Program on Corporate Compliance and Enforcement (PCCE) held its 10th Anniversary Conference, featuring keynote speakers Nicole Argentieri, Principal Deputy Assistant Attorney General and Head of DOJ’s Criminal Division; Gurbir Grewal, Director of Enforcement, SEC; and Andrea Griswold, Deputy U.S. Attorney, SDNY, among other distinguished speakers. More information on the conference can be found here. At the conference, Principal Deputy Assistant Attorney General Argentieri first announced a new voluntary self-disclosure program for individuals. A blog post by her, which describes the program and provides links to more information, is republished below.

©Myaskovsky: Courtesy of NYU Photo Bureau

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WilmerHale Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024

by Kimberly Parker, Jay Holtmeier, Erin Sloane, Christopher Cestaro, Sandra Redivo, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae

Top left to right: Kimberly Parker, Jay Holtmeier, Erin Sloane, and Christopher Cestaro.
Bottom left to right: Sandra Redivo, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae. (Photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP).

Although publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity remains lower than the levels reached a few years ago, 2023 saw a modest increase in the overall number of FCPA enforcement actions (26 in 2022 vs. 27 in 2023). This was seen especially in the number of corporate resolutions (12 in 2022 vs. 15 in 2023). The combined total of monetary penalties decreased, from $1.56 billion in 2022 to $776 million in 2023. Nonetheless, senior officials at the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) again signaled, through policy changes and public announcements, that anti-corruption enforcement is a priority and that there will be significant and growing enforcement efforts going forward. Below are the key takeaways regarding FCPA enforcement in 2023 and trends to keep in mind as we look ahead to 2024.

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DOJ Continues to Modernize its Criminal Antitrust Enforcement Strategy

by Richard A. Powers

(Photo courtesy of the author)

Over the past few years, the Justice Department has been hard at work on a comprehensive update to the way it detects, investigates, and prosecutes price-fixing cartels. Several recent announcements, including at last week’s ABA White Collar Conference, preview the DOJ Antitrust Division’s next steps in this generational shift—the goals of which are to refine disclosure incentives, promote individual accountability, and obtain trial convictions.

First, on March 7, 2024, Deputy Attorney General Lisa Monaco announced the DOJ is kicking off a 90-day whistleblower “policy sprint”; the finish line is a new program to complement existing regulators’ programs, rewarding qualifying whistleblowers for bringing non-public, previously unknown misconduct to the DOJ’s attention. The Antitrust Division has long sought to encourage individual self-reporting as a complement to its corporate VSD policy, so expect that this initiative will aim to improve that incentive structure. Next, the DOJ updated the Justice Manual to incorporate the M&A safe harbor policy that it announced last fall. Notably for antitrust practitioners, the JM updates included changes to the Antitrust Division’s leniency policy that provide much-needed clarification on how companies that detect potential collusion at an M&A target can avoid inheriting those liabilities by promptly reporting to DOJ. Third, senior Antitrust Division officials continue to emphasize that they are focused on developing investigations through affirmative investigative techniques, such as wiretaps and whistleblowers.

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White-Collar and Regulatory Enforcement: What Mattered in 2023 and What to Expect in 2024

by John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Sarah K. Eddy, Randall W. Jackson, and Kevin S. Schwartz

Top left to right: John F. Savarese, Ralph M. Levene, Wayne M. Carlin, and David B. Anders.
Bottom left to right: Sarah K. Eddy, Randall W. Jackson, and Kevin S. Schwartz. (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

This past year was yet another notable and intensely active one across the entire range of white-collar criminal and regulatory enforcement areas. We heard continued tough talk from law enforcement authorities, especially concerning the government’s desire to bring more enforcement actions against individuals and on the need to keep ramping up corporate fines and penalties. The government largely lived up to its talking points about increasing the numbers of individual prosecutions and proceedings, particularly with respect to senior executives in the cryptoasset industry. But there were some notable stumbles. The most striking example of this was DOJ’s failure to secure convictions in cases where it attempted to extend criminal antitrust enforcement in unprecedented areas, such as no-poach employment agreements and against certain vertical arrangements—neither of which has historically been viewed as involving per se violations of the federal antitrust laws. And, as in years past, many state attorneys general remained active throughout 2023, using broad state consumer-protection statutes to bring blockbuster cases across a wide array of industries, from ridesharing and vaping to opioids and consumer technology offerings.

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