No Result
View All Result
SUBSCRIBE | NO FEES, NO PAYWALLS
MANAGE MY SUBSCRIPTION
NEWSLETTER
Corporate Compliance Insights
  • Home
  • About
    • About CCI
    • CCI Magazine
    • Writing for CCI
    • Career Connection
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Library
    • Download Whitepapers & Reports
    • Download eBooks
    • New: Living Your Best Compliance Life by Mary Shirley
    • New: Ethics and Compliance for Humans by Adam Balfour
    • 2021: Raise Your Game, Not Your Voice by Lentini-Walker & Tschida
    • CCI Press & Compliance Bookshelf
  • Podcasts
    • Great Women in Compliance
    • Unless: The Podcast (Hemma Lomax)
  • Research
  • Webinars
  • Events
  • Subscribe
Jump to a Section
  • At the Office
    • Ethics
    • HR Compliance
    • Leadership & Career
    • Well-Being at Work
  • Compliance & Risk
    • Compliance
    • FCPA
    • Fraud
    • Risk
  • Finserv & Audit
    • Financial Services
    • Internal Audit
  • Governance
    • ESG
    • Getting Governance Right
  • Infosec
    • Cybersecurity
    • Data Privacy
  • Opinion
    • Adam Balfour
    • Jim DeLoach
    • Mary Shirley
    • Yan Tougas
No Result
View All Result
Corporate Compliance Insights
Home Compliance

DPAs and NPAs Are on the Rise

by Edward Buthusiem
July 28, 2017
in Compliance, Featured
multiple lines on graph showing upward trends

What Does This Mean for You?

The Department of Justice (DOJ) has increasingly been using pretrial diversion programs, which often take the form of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), as a tool to hold corporations accountable for wrongdoing.

with co-author Briannon Irwin

The Department of Justice (DOJ) has increasingly been using pretrial diversion programs, which often take the form of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), as a tool to hold corporations accountable for wrongdoing.

Although the DOJ’s new focus on individual accountability for corporate wrongdoing, set forth in the September 2015 Yates Memorandum, caused some to question whether the use of pretrial diversion programs would continue, DPAs and NPAs aren’t going anywhere. According to a recent report by the Manhattan Institute, the federal government entered into 35 pretrial diversion programs in 2016, the largest number since 2012. Of those agreements, 14 (40 percent) were DPAs, which follow the filing of criminal charges against a corporation; the remaining 21 were NPAs, which are executed prior to a filing. More than one-third of these agreements were predicated on violations of the federal Foreign Corrupt Practices Act (FCPA), which imposes penalties on those who bribe foreign officials, up from only 15 percent in 2015. Payouts under these agreements reached $4.6 billion in 2016, for a total of over $35 billion in payments since 2010.

Most significant, 2016 marked the first year that a majority of DPA and NPA agreements required the placement of a corporate monitor, an objective third party tasked with overseeing the company’s adherence to the agreement and reporting misconduct to the federal government. From a policy standpoint, this should be cause for concern for companies and individuals; many worry that the increased use of corporate monitors will permit the government to have “deep levels of ongoing oversight over the internal operations of major businesses — oversight not necessarily limited to policing the asserted conduct underlying the rationale for these agreements.”

At the same time, corporations often agree to DPAs and NPAs despite the fact that legitimate defenses could be raised in court because a criminal conviction may result in serious economic and reputational harm, as well as job losses for thousands of employees if the company were to be convicted in a criminal proceeding. For life sciences companies that do business with the federal government, consequences of a criminal conviction are especially severe — penalties may include exclusion from government-run health care programs and debarment from government contracting.

In addition to levying large penalties and mandating the appointment of monitors under DPAs and NPAs, the DOJ under the Obama administration often required companies to donate significant sums of money to third parties that were not involved in the lawsuits, such as the National Urban League and the National Council of La Raza, raising questions as to whether it was proper for the DOJ to dictate to which charitable organizations a company should donate. This practice was recently ended when Attorney General Jeff Sessions released his June 5, 2017 Memorandum on the Prohibition on Settlement Payments to Third Parties, stating that “any settlement funds should go first to the victims and then to the American people — not to bankroll third-party special interest groups or the political friends of whoever is in power.”

While companies should applaud the Sessions Memorandum as the first step in limiting the wide discretion of the DOJ to dictate terms under pretrial diversion programs, the proliferation of DPAs and NPAs in 2016 demonstrated that corporations will continue to be stuck between the proverbial rock and a hard place when charged with corporate wrongdoing: either agree to the DOJ’s terms or risk financial and reputational ruin in litigation. To avoid this Sophie’s Choice, life sciences companies should continue to implement and improve robust compliance programs and policies, especially those that address FCPA-related risks. Corporations should also place renewed focus on employee training and auditing and monitoring programs to ensure that all activities comply with relevant laws, regulations and industry guidance documents.

Berkeley Research Group, LLC (BRG) professionals have significant experience acting as monitors for the FTC, European Commission and foreign bodies, as well as playing the role of an independent review organization in connection with consent decrees imposed by the Security and Exchange Commission, Department of Justice, Office of the Inspector General, Serious Fraud Office, and other international fraud offices. BRG professionals also stand ready to advise life science companies regarding the implementation of effective compliance programs, as well as anti-bribery and anti-corruption policies and procedures.

For further information, please contact Edward J. Buthusiem at ebuthusiem@thinkbrg.com or a member of the BRG Corporate Compliance and Risk Management team.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions, position or policy of Berkeley Research Group, LLC or its other employees and affiliates.


Tags: DOJYates Memo/Personal Liability
Previous Post

What the GDPR Means for Your Organization

Next Post

Cyber Insurance Critical in Protecting Against Cybercrime

Edward Buthusiem

Edward Buthusiem

Edward J. Buthusiem is a Managing Director at BRG. As an expert in food and drug law, mergers and acquisitions, technology licensing transactions, and innovation, Mr. Buthusiem advises executive management and general counsels on a variety of strategic business and operational issues.

Related Posts

doj distorted

FCPA Enforcement Back on at DOJ — With a New Look

by Jennifer L. Gaskin
June 18, 2025

After a shorter-than-expected pause, officials with the DOJ have formally renewed the department’s enforcement of the FCPA. CCI’s Jennifer L....

doj exterior sign

How to Use the DOJ’s ECCP to Build (or Fix) Your Compliance Program

by Susan Divers
June 5, 2025

Corporate compliance programs face increasing scrutiny as the DOJ applies its evaluation framework across industries and company sizes, from multinational...

doj sign front

Assessing the Business Risks of the Trump Administration’s ‘Total Elimination’ Strategy

by José Cortina and Jennifer Christian
May 20, 2025

As cartels increasingly participate in mainstream economic activities, traditional due diligence practices become inadequate to address new material support risks

doj sign and sculpture

DOJ’s New CEP Proposes Guaranteed Declination for Some Self-Reporters

by Jennifer L. Gaskin
May 13, 2025

The Trump Administration continues reshaping its approach to corporate crime, with the DOJ issuing major revisions of its corporate enforcement...

Next Post
person touching shield with lock symbol

Cyber Insurance Critical in Protecting Against Cybercrime

No Result
View All Result

Privacy Policy | AI Policy

Founded in 2010, CCI is the web’s premier global independent news source for compliance, ethics, risk and information security. 

Got a news tip? Get in touch. Want a weekly round-up in your inbox? Sign up for free. No subscription fees, no paywalls. 

Follow Us

Browse Topics:

  • CCI Press
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks Published by CCI
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • GRC Vendor News
  • HR Compliance
  • Internal Audit
  • Leadership and Career
  • On Demand Webinars
  • Opinion
  • Research
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Well-Being
  • Whitepapers

© 2025 Corporate Compliance Insights

Welcome to CCI. This site uses cookies. Please click OK to accept. Privacy Policy
Cookie settingsACCEPT
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
No Result
View All Result
  • Home
  • About
    • About CCI
    • CCI Magazine
    • Writing for CCI
    • Career Connection
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Library
    • Download Whitepapers & Reports
    • Download eBooks
    • New: Living Your Best Compliance Life by Mary Shirley
    • New: Ethics and Compliance for Humans by Adam Balfour
    • 2021: Raise Your Game, Not Your Voice by Lentini-Walker & Tschida
    • CCI Press & Compliance Bookshelf
  • Podcasts
    • Great Women in Compliance
    • Unless: The Podcast (Hemma Lomax)
  • Research
  • Webinars
  • Events
  • Subscribe

© 2025 Corporate Compliance Insights