RESOLUTIONS
What Are the Different Types of Resolutions with DOJ?
Criminal Complaints, Informations, and Indictments
Charges against individuals and companies are brought in three different ways under the Federal Rules of Criminal Procedure: criminal complaints, criminal infor- mations, and indictments.
DOJ may agree to resolve criminal FCPA mat- ters against companies either through a declination or, in appropriate cases, a negotiated resolution resulting in a plea agreement, deferred prosecution agreement, or non-prose- cution agreement. For individuals, a negotiated resolution will generally take the form of a plea agreement, which may include language regarding cooperation, or a non-prosecu- tion cooperation agreement. When negotiated resolutions cannot be reached with companies or individuals, the mat-
ter may proceed to trial.
Plea Agreements
Plea agreements—whether with companies or individuals—are governed by Rule 11 of the Federal Rules of Criminal Procedure. The defendant gener- ally admits to the facts supporting the charges, admits guilt, and is convicted of the charged crimes when the
plea agreement is presented to and accepted by a court.
Resolutions
The plea agreement may jointly recommend a sentence or fine, jointly recommend an analysis under the USS. Sentencing Guidelines, or leave such items open for
argument at the time of sentencing.
Deferred Prosecution Agreements
Under a deferred prosecution agreement, or a DPA as it is commonly known, DOJ files a charging document with the court,” but it simultaneously requests that the prosecution be deferred, that is, postponed for the pur- pose of allowing the company to demonstrate its good conduct. DPAs generally require a defendant to agree to pay a monetary penalty, waive the statute of limitations, cooperate with the government, admit the relevant facts, and enter into certain compliance and remediation com- mitments, potentially including a corporate compliance monitor. DPAs describe the company’s conduct, coopera- tion, and remediation, if any, and provide a calculation of the penalty pursuant to the US. Sentencing Guidelines. In addition to being publicly filed, DOJ places all of its DPAs on its website. If the company successfully com- pletes the term of the agreement (typically two or three years), DOJ will then move to dismiss the filed charges. A company’s successful completion of a DPA is not treated
as a criminal conviction.
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