Follow Patrick Linkedin Twitter Facebook
Email Patrick Email
Legal Issues
Sep 15, 2015

Deferred Prosecution Agreements, Part 3: More Potential Collateral Consequences

Sponsored Content provided by Patrick Mincey - Criminal Defense Attorney, Cranfill Sumner & Hartzog LLP

In my last few articles, I’ve been reviewing the concept of the deferred prosecution agreement (DPA) which has become a standard tool of the U.S. Department of Justice in dealing with white collar crime. A DPA is a contract between the DOJ and the target of an investigation – often a corporation or business entity – that resolves a federal criminal investigation short of a formal prosecution or guilty plea. It provides the DOJ with a middle ground between closing an investigation without further prosecutorial pursuit and indicting a corporation, which can have adverse collateral consequences to the corporation’s employees, investors, suppliers and customers. For its part, the corporation avoids full prosecution.
 
In addition to Noncontradiction Clauses and impacts on other civil discovery, here are two more collateral consequences that can occur when entertaining entering into a DPA with the government for corporations to consider.
 
Admissibility of the DPA.  There is little precedent on whether a DPA is admissible evidence against the corporation in other litigation.  For instance, in the BP Deepwater Horizon oil spill litigation the court granted a motion in limine to prevent the jury from receiving evidence about a DPA that resolved allegations about an earlier oil refinery accident in Texas. However, the court deemed the DPA potentially relevant to future trial proceedings, including whether punitive damages would be awarded. Courts are grappling over the admissibility of the DPA as evidence of other crimes, wrongs or acts, the inadmissibility of the DPA and the DPA discussions at settlement negotiations and plea negotiations. Corporations and their counsel must craft the DPA in a way that does not allow for its introduction into evidence in the future. 
 
Punitive Damages. When courts determine a DPA is inadmissible in the early stages of a trial, the court may still find it more relevant and admissible in the context of a jury’s assessment of punitive damages or civil fines. The Deepwater Horizon court suggested that the DPA could potentially be admitted in a punitive damages phase, including in a case arguably unrelated to the specific conduct that is the subject of the DPA
 
DPAs are still in a nascent state, and DOJ prosecutors are continuing to create new ways to induce corporate cooperation. Corporations and their boards must not only consider the immediate and direct impacts of the terms of the DPA, but also how it may dictate strategy in collateral litigation.
 
Patrick Mincey is a trial lawyer in Wilmington, where he founded the Criminal Defense Group at Cranfill Sumner & Hartzog LLP. His criminal practice ranges from representing individuals and corporate clients who are targets, subjects or witnesses in federal and state white collar proceedings to “blue collar” defendants charged with murder, drug conspiracies and assaults. To contact Patrick Mincey, call (910) 777-6017 or email him at [email protected].  

Wbj insights revised 0510 61715110749
Ico insights

INSIGHTS

SPONSORS' CONTENT
Lyleheadshot2017 1251720228

Four Keys to Success for Your Business's Next Charity Event

JC Lyle - Wilmington Area Rebuilding Ministry
Rob20beale2 311791810

Using Building & Design Principles to Improve Employee Engagement

Rob Beale - W.M. Jordan Company
Geofflosee300x300 10221511305

N.C. Court of Appeals Issues Important Land Use Development Decision

Geoffrey Losee - Rountree Losee LLP

Trending News

Morton Approved As CFCC President By State Board

Jenny Callison - Apr 20, 2018

Music Supply Firm's New Location Makes Room For Growth

Christina Haley O'Neal - Apr 20, 2018

CFCC Situation Draws State Board Scrutiny

Jenny Callison - Apr 20, 2018

State Board To Consider Morton Selection As CFCC President This Week

Jenny Callison - Apr 19, 2018

Homeowners Insurance Rate Increase Capped At 5.5 Percent

Christina Haley O'Neal - Apr 19, 2018

In The Current Issue

In Case Of GenX

Michael Kiser is one of four plaintiffs in consolidated toxic tort cases, proposed as a class action, filed in U.S. District Court in the Ea...


Area Attorneys Land On 2018 LEGAL ELITE List

On this year’s Business North Carolina annual list of Legal Elite lawyers, 705 attorneys were selected, fewer than 3 percent of the state’s...


Rates, Mortgage Demand On The Rise

Mortgage rates may be inching up, but demand for mortgages remains strong in the Wilmington market, say brokers....

Book On Business

The 2018 WilmingtonBiz: Book on Business is an annual publication showcasing the Wilmington region as a center of business.

Order Your Copy Today!


Galleries

Videos

WilmingtonBiz Expo - Keynote Lunch with John Gizdic, CEO, New Hanover Regional Medical Center
Wilmington's Most Intriguing People of 2017
2017 Health Care Heroes