Search results

Testimony issued by the Government Accountability Office with an abstract that begins "Recent cases of corporate fraud and mismanagement heighten the Department of Justice's (DOJ) need to appropriately punish and deter corporate crime. Recently, DOJ has made more use of deferred prosecution and non-prosecution agreements (DPAs and NPAs), in which prosecutors may require company reform, among other things, in exchange for deferring prosecution, and may also require companies to hire an independent monitor to oversee compliance. This testimony provides preliminary observations on (1) factors DOJ considers when deciding whether to enter into a DPA or NPA and setting the terms of the agreements, (2) methods DOJ uses to oversee companies' compliance, (3) processes by which monitors are selected, and (4) companies' perspectives regarding the costs and role of the monitor. It also includes the results of GAO's recently completed work on DOJ's efforts to document the monitor selection process (discussed in objective 3). GAO reviewed DOJ guidance and 57 of the 140 agreements negotiated from 1993 (when the first 2 were signed) through May 2009; and interviewed DOJ officials, officials from 17 companies, and 6 monitors. While not generalizable, these results provide insight into decisions about DPAs and NPAs."

Up until the most recent financial crisis, the Justice Department consistently prosecuted individuals responsible for corporate misconduct. In recent times, few executives are prosecuted for their vast corporate misconduct and most received a deferred prosecution agreement in exchange for waiving the corporation's attorney-client privilege. This Note discusses how the waiver of attorney-client privilege has, in effect, reduced the prosecution of executives responsible for corporate crimes. It argues that the Justice Department must conduct its own investigations into corporate misconduct and should not rely on a corporation waiving its attorney-client privilege in exchange for a lenient deal. Successfully reducing corporate misconduct depends, in part, on the government's ability to deter the individuals running the corporation, which cannot be met when leniency replaces investigative work.