FRONTEO's Anisa Henderson (Florida, USA / Washington, DC, USA) has summarized the Deferred Prosecution Agreement (DPA).

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Overview

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The "Deferred Prosecution Agreement (DPA)" is an agreement between the prosecutor and the suspect, which allows the prosecutor to forgo criminal charges if the suspect complies with certain conditions. This agreement, translated as "deferral of prosecution agreement" or "deferral of prosecution agreement," is carried out under the federal system, with criminal charges being carried out by the US Department of Justice (DOJ) and securities law-related matters by the US Securities and Exchange Commissioner. The Securities and Exchange Commission (SEC) is in charge.

A common condition in DPA is "implementation of a strong compliance program aimed at preventing recidivism of the illegal activity investigated."

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Lawyer's view

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The number of DPA applications has been declining over the last few years, but it remains the DOJ's preferred method. DPA is often applied to FCPA (Foreign Corrupt Practices Act) cases, but recently antitrust cases have also emerged. Companies that support the DOJ's investigation may be exempt from prosecution and may be subject to a prosecution deferment agreement, but it is not easy to meet the DPA requirements.You have to show the DOJ that you are implementing a "good" code, not just a compliance code.As in the case of Ericsson last year, the DOJ may require an independent compliance observer to be assigned to the company, which can be a heavy burden for the company.We recommend that you consult with a lawyer who has experience in DOJ investigation and compliance and who is willing to understand the business contents of the company regarding what kind of compliance norms will be implemented. ..

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Points that companies should be aware of

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DPA (Deferral of Prosecution Agreement) and NPA (Non-Prosecution Agreements) are only a small part of the benefits to companies that cooperate with the DOJ's investigation and implement strong compliance standards.

Click here for statistics on the number of DPA / NPA applications: https://www.gibsondunn.com/wp-content/uploads/2019/01/Warin-Day-Farrar-Trends-In-DOJ-Nonprosecution-Deferred-Prosecution-Deals -Law360-01-29-2019.pdf

Anisa Henderson (Florida, USA / Washington, DC, USA)