Deferred Prosecution Agreement

A Deferred Prosecution Agreement (DPA) is a written agreement between DOJ and a defendant under which DOJ files (and ultimately dismisses) charges in exchange for the defendant's agreement to defined obligations, including monetary penalties, ongoing cooperation, compliance program implementation, and an independent monitor in some matters. DPAs are most commonly used with corporate defendants. A Non-Prosecution Agreement (NPA) is a related instrument under which DOJ agrees not to file charges at all, conditioned on similar obligations.

How a Deferred Prosecution Agreement works

DPA negotiation typically follows a substantial DOJ investigation, often including grand jury subpoenas, witness interviews, and proffer sessions. The defendant's counsel and DOJ negotiate the agreement's terms: the criminal charge or charges that will be filed, the dismissal mechanism, the term of the agreement (usually 2 to 5 years), the monetary penalty, the compliance obligations, any independent monitor requirement, the cooperation obligations going forward, and the breach mechanics.

DOJ files the charges along with the agreement in federal district court. The court reviews and (usually) accepts the agreement. During the agreement term, the defendant complies with all obligations, including any monitorship, and at the end of the term DOJ files the dismissal. Breach of the agreement (committing new offenses, failing to cooperate, failing to implement compliance) can result in DOJ proceeding to prosecution on the original charges plus any new offenses.

When a Deferred Prosecution Agreement applies

DPAs are most commonly used with corporate defendants in healthcare fraud, FCA-AKS matters, Foreign Corrupt Practices Act cases, antitrust matters, and other federal corporate prosecutions. Individual DPAs occur but are rarer. Within healthcare, DPAs frequently accompany FCA-AKS settlements where the underlying conduct supports criminal exposure but DOJ has determined that prosecution is not appropriate given cooperation, remediation, and proportionality factors. The Justice Manual addresses the criteria DOJ applies in deciding whether to charge a corporation versus enter a DPA at section 9-28.000.

The defendant's exposure under a Deferred Prosecution Agreement

A DPA is a public document filed in federal court, with the underlying charges public for the agreement term and the dismissal also a matter of record. The reputational exposure is meaningful, though distinct from a conviction. Operational exposure includes the cost of compliance program implementation, monitor fees (six- to seven-figures annually where a monitor is required), and management attention. Breach exposure includes re-prosecution on the original charges plus any new offenses. The defense framework focuses on the negotiation process: the charges to be filed, the dollar penalty, the compliance and monitor terms, and the cooperation obligations going forward.

Related terms

• Target letter The DOJ notification that frequently precedes the negotiation leading to a DPA.
• Grand jury subpoena The compulsory process that builds the record on which DPA negotiation is based.
• Corporate Integrity Agreement The parallel HHS-OIG compliance framework that often accompanies a DPA in healthcare matters.
• False Claims Act The civil statute whose settlement often runs in parallel with DPA negotiation.

See also

• Practice area
  Criminal Healthcare Fraud Defense

  The full criminal defense framework including pre-indictment resolution and DPA negotiation.

• Practice area
  Healthcare Fraud Defense

  The umbrella healthcare fraud defense framework spanning civil, regulatory, and criminal tracks.