Charges filed and held, or never filed, in exchange for obligations over a term.
Esshaki Legal Media TeamCurrent as of April 2023
Resolutions short of conviction are common for organizations. Two structures
dominate.
Deferred prosecution agreement. A charging document is filed, prosecution is
deferred for a term, and the charges are dismissed if the company complies.
Court involvement varies by jurisdiction.
Non-prosecution agreement. No charge is filed; the agreement is between the
company and the enforcement authority.
Common terms. An agreed statement of facts the company may not contradict
publicly; a monetary penalty with credit for disgorgement or restitution;
ongoing cooperation, including against individuals; compliance program
undertakings; periodic reporting; and in some cases an independent monitor or
self-reporting in lieu of one.
The statement of facts is consequential. It is admissible in civil
litigation, is quoted in shareholder suits, and constrains the company’s public
statements including in investor communications.
Breach. The authority typically has sole discretion to determine breach,
which can revive the prosecution with the statement of facts already conceded.
Collateral consequences. Debarment, licensing, and contractual
representations to lenders and counterparties may be triggered by the resolution
itself. Those consequences should be mapped before terms are agreed, not
discovered when a credit agreement default notice arrives.