Deferred Prosecution Agreements and Non-Prosecution Agreements

Deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) are two of the most significant tools in the federal government's corporate enforcement arsenal. Both instruments allow the Department of Justice to resolve criminal investigations without a formal conviction, imposing obligations on the subject entity in exchange for prosecutorial forbearance. Understanding how each operates, when prosecutors deploy them, and where their boundaries lie is essential to grasping the full range of federal prosecution strategy in complex corporate and white-collar matters.

Definition and Scope

A deferred prosecution agreement is a formal, court-filed agreement between the DOJ and a target — typically a corporation — under which a criminal information or indictment is filed but prosecution is suspended while the entity fulfills specified conditions over an agreed period, commonly 12 to 36 months. If the entity satisfies all conditions, the government moves to dismiss the charges at the conclusion of the term. Because the charging document is filed with the court, a DPA carries a degree of judicial oversight, though the scope of that oversight has been contested in federal courts.

A non-prosecution agreement achieves a similar outcome through a different mechanism. No charging document is filed. The agreement exists as a contract between the DOJ and the target, and it is not submitted to any court. Compliance and enforcement rest entirely with the prosecuting division or U.S. Attorney's Office. Because no public docket entry exists, NPAs are generally less transparent than DPAs.

Both instruments operate within the broader framework of DOJ corporate enforcement policy, which the Criminal Division and the Deputy Attorney General's Office have memorialized through a series of policy memoranda since the 2003 Thompson Memorandum.

How It Works

A DPA or NPA is typically the product of a negotiated resolution following a government investigation. The structured process generally follows these steps:

1. Investigation and target identification — A federal investigation by the FBI, DOJ Criminal Division, or a U.S. Attorney's Office develops evidence of criminal conduct by a corporate entity.
2. Cooperation assessment — Prosecutors evaluate the company's voluntary disclosure, cooperation with investigators, and remediation efforts under criteria established in the DOJ's charging decisions guidance.
3. Agreement negotiation — Parties negotiate terms including the statement of facts, penalty amount, compliance obligations, and monitor requirements.
4. Execution and filing — For a DPA, the criminal information is filed in federal district court; for an NPA, the agreement is executed without any court filing.
5. Compliance period — The entity implements required reforms, often under a court-appointed or DOJ-approved independent compliance monitor.
6. Resolution — Successful compliance results in dismissal of charges (DPA) or confirmation that no charges will be filed (NPA); breach can trigger immediate prosecution.

Penalties attached to these agreements often include monetary fines that track statutory maximums under relevant criminal statutes. In the Foreign Corrupt Practices Act context, for example, corporate resolutions have reached into the billions of dollars — the Goldman Sachs 1MDB resolution in 2020 resulted in a combined penalty exceeding $2.9 billion (DOJ Press Release, October 22, 2020).

Common Scenarios

DPAs and NPAs appear most frequently in four categories of corporate misconduct:

• Foreign bribery — Violations of the Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1) constitute the most common predicate for FCPA-related resolutions under DOJ FCPA enforcement practice.
• Healthcare fraud — Pharmaceutical and medical device companies frequently resolve False Claims Act criminal exposure through DPAs negotiated by the DOJ's healthcare fraud enforcement units and the Civil Division.
• Financial crimes — Banks and broker-dealers facing money laundering or sanctions violations commonly resolve matters through DPAs with the DOJ Criminal Division and money laundering enforcement components.
• Antitrust violations — Though plea agreements dominate cartel enforcement, DPAs have appeared in bid-rigging resolutions administered by the DOJ Antitrust Division.

Decision Boundaries

Prosecutors exercise discretion in choosing among five potential dispositions: indictment and prosecution, a DPA, an NPA, a declination, or a civil resolution. The DOJ's internal guidance — including the Filip Factors codified in the Justice Manual at § 9-28.000 — identifies eight factors relevant to charging decisions against organizations (DOJ Justice Manual § 9-28.000).

DPA vs. NPA — Key Distinctions:

The threshold between a DPA and outright prosecution turns heavily on cooperation, self-disclosure, and the quality of compliance remediation. The DOJ's Corporate Enforcement Policy, updated by the Criminal Division, offers measurable credit — including potential declinations — to entities that self-report under the DOJ voluntary disclosure framework before the government independently discovers the conduct.

DPAs and NPAs differ from plea agreements in a fundamental respect: they do not produce a conviction. A guilty plea creates a criminal record that can trigger debarment, license revocation, or exclusion from federal programs. Avoiding conviction is therefore the central commercial motivation for entities that would otherwise qualify for prosecution. This dynamic, documented across the full landscape of DOJ enforcement practice, shapes how corporations structure internal investigations, remediate misconduct, and engage with government investigators from the earliest stages of a matter.