Are NPAs and DPAs efficient enforcement tools?

Author: | Published: 5 Mar 2018

Overcoming misguided criticism regarding their level of transparency and punitive character, NPAs and DPAs have proven essential and efficient enforcement too

Several of this century's larger corporate enforcement agreements, with penalties in the billions and hundreds of millions of dollars, have been resolved through non-prosecution agreements (NPAs) or deferred prosecution agreements (DPAs), inviting public scrutiny into how these agreements are negotiated and policed. On the one hand, the relatively balanced and nuanced resolutions they provide to complex allegations have brought tremendous benefits to enforcement agencies and companies alike by incentivising good corporate behaviour, self-disclosure as potential violations arise, extensive cooperation with government investigations, effective management of prosecution resources, and meaningful remediation. On the other, certain detractors have alleged that there is inadequate transparency into how NPAs and DPAs are negotiated and overseen, and that the tools are insufficiently punitive. These are important considerations, but an examination of the origins of...