Confidentiality and Transparency in Deferred Prosecution Agreements

"Transparency" or "Opacity"?

“Transparency” or “Opacity”?

Here’s a note about.DOJ Transparency In Deferred Prosecution Agreements

Professor Podgor argues:

It is hard to believe that someone would have to file a lawsuit to obtain information about a non-prosecution agreement of a corporation.  One can understand the need to protect individuals from the sting of criminality when an agreement is reached to defer a prosecution or when an individual is being spared a prosecution as an alternative method to rehabilitate that individual.  But corporations are not afforded the same rights as individuals. The government is quick to note that corporations do not have the same rights as individuals when they are trying to obtain corporate documents. 

Fair enough, and “transparency” is supposed to be better than “opacity,” but is the question about NPAs and DPAs really one of “rights”?  Such agreements are the result of horse-trading and power plays.  A company (unlike an individual) may have to worry about private plaintiffs and other follow-on litigation.  Depending on the situation, the confidentiality of the factual basis for the agreement may be the quid pro quo for the company entering into negotiations at all.  In other words, if the collateral damage from disclosure is potentially greater than the cost and risk of litigating, then the company may force the Government to litigate (or cave).

At the Old Bailey

At the Old Bailey

As a white-collar lawyer who like trials, I like that latter option, but I’m not sure it’s in the best interests either of American businesses or efficient investigations and prosecutions.

Here’s the website mentioned in the BLT article:  Brandon L. Garrett and Jon Ashley, Federal Organizational Prosecution Agreements, University of Virginia School of Law, at http://lib.law.virginia.edu/Garrett/prosecution_agreements/home.suphp.