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Hastings Business Law Journal

Authors

Peter Reilly

Abstract

From business to individual, almost anyone can be the subject to investigation for possible violations of the U.S. Foreign Corrupt Practices Act. If a party is indicted, the case may be resolved through an ADR vehicle currently being employed by the DOJ: The Deferred Prosecution Agreement (“DPA”) or the Non-Prosecution Agreement (“NPA”).

The use of such agreements is not guaranteed as an alternative to trial; rather they are awarded to defendants through negotiations with the DOJ. But here is the problem: This negotiation between prosecutor and accused can sometimes be unfair to the point where any “bargaining” taking place is merely illusory. In many instances, the government has too much power, too much leverage, and too much discretion in presenting, negotiating, and implementing DPAs and NPAs. There is not enough transparency or consistency within these two negotiation processes. This is not a trivial matter. Monetary recoveries related to DPAs and NPAs over a thirteen-year period total more than $37 billion. And while they might seem similar to plea bargains, DPAs and NPAs are substantively quite different from plea bargains.

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pretrial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

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