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
Carolinemontgomery4

Paycheck Protection Program (PPP) Update

Caroline Montgomery - Adam Shay CPA, PLLC
Mikeharrington carolinaretreats 2

Short-Term Rentals, Long Term Value

Mike Harrington - Carolina Retreats
Tonyharrington wrar300x300

Democracy Is Not A Spectator Sport

Tony Harrington - Cape Fear REALTORS®

Trending News

New Restaurant Now Open In Landfall Shopping Center

Jessica Maurer - Oct 21, 2020

Bitty & Beau's Owners Announce First Franchise Location

Jessica Maurer - Oct 20, 2020

At Mayfaire Town Center, School Of Rock Gets Ready To Roll

Cece Nunn - Oct 20, 2020

Developer Planning Another Building In Pender Commerce Park

Christina Haley O'Neal - Oct 21, 2020

Wilmington-based Innovative Financial Group Announces Partnership

Christina Haley O'Neal - Oct 20, 2020

In The Current Issue

An Election Like No Other

Like everything about 2020, this year’s elections are a little more com­plicated than they used to be, and there’s a lot at stake in the out...


Wilmington Rail Trail Stays On Track

A master plan for the Wilmington Rail Trail, which will transform rail beds into a public corridor for foot and bicycle traffic, is on its w...


Connect Focus: Social Justice

Cucalorus is shifting its Connect Conference to focus more on conversations around pressing social issues and less on technology....

Book On Business

The 2020 WilmingtonBiz: Book on Business is an annual publication showcasing the Wilmington region as a center of business.

Order Your Copy Today!


Galleries

Videos

2020 Leadership Accelerator: Virtual Workshops for Real Leaders
2019 Health Care Heroes
August 26, 2019 Power Breakfast: A Healthy Sale?
2019 WilmingtonBiz Expo Keynote Lunch - CEO, nCino, Pierre Naude`