Judicial Review of Deferred Prosecution Agreements: A Comparative Study

I am pleased to report that the Columbia Journal of Transnational Law (an excellent student-run journal, where I serve on the Board) has published my article Judicial Review of Deferred Prosecution Agreements: A Comparative Study, which is available at the Journal site here.  https://www.jtl.columbia.edu/volume-60/judicial-review-of-deferred-prosecution-agreements-a-comparative-study-ag4ar The article looks at corporate DPAs from the angle of whether, and the extent to which, corporate criminal agreements are subject to any form of judicial review, such as whether the agreement is “in the public interest.”  The answer in the United States is pretty simple: the courts have said that under “separation of the powers” principles, courts must stay “hands off” with respect to DPAs and cannot review them to see if they are in the public interest — even if the agreements involved hundreds of millions or even billions of dollars, and have a significant impact on the public and on third parties.  Other countries view the issue very differently.  The most interesting is the United Kingdom (actually England and Wales, since the other UK nations don’t do corporate DPAs), where there is robust judicial review, often in interesting and well-written opinions of 30 pages or more analyzing the deal.

My article looks in some detail into the regimes, and the outcomes to date, in the US, the UK, and France, and touches on regimes in several other countries where corporate DPAs are being rolled out or are under consideration.  It expresses a few opinions, among them that one of the principal decisions in the US blocking such review does not appear to me to be terribly well reasoned; and I believe that having a neutral review such deals provides a much-needed sense of transparency.  I also raise the question — on which I would be very interested in readers’ thoughts — whether or not the possibility of judicial review may dissuade corporations from attempting to enter into one.

Very interesting to note that ALL of the other countries that have adopted or are exploring corporate DPAs are unquestionably doing so because they perceive that the US approach “works,” my view is that this is an interesting example of essentially Darwinian evolution where a successful innovation spreads.