Global consumer goods conglomerate Reckitt Benckiser Group announced last week a record $1.4 billion civil settlement with the federal government over sales and marketing of the opioid Suboxone. The settlement included what appears to be an unprecedented nonprosecution agreement that allows the company to deny any wrongdoing.

Brandon Garrett, a professor at Duke University School of Law, told Corporate Counsel the agreement was unusual. “It is typical for a corporation to admit, accept, and acknowledge responsibility for both acts set forth in a statement of facts and specific criminal law violations, in a nonprosecution agreement,” Garrett said.

Brandon L. Garrett (Courtesy photo)

He said it is also typical for the agreements to include language that prohibits the company from denying its acceptance of responsibility. There is no such language in this agreement. Attorney Ryan McConnell, a former federal prosecutor and founder of the R. McConnell Group in Houston, said he has “never seen a nonprosecution agreement without that sentence.”

Not only does the agreement not carry the language, a separate civil settlement in the case explicitly states that RB Group does not admit liability and “denies the allegations in the covered conduct [section] and in the civil actions” brought by six whistleblowers.

The U.S. Department of Justice's press release did not mention the denial. But the RB Group issued its own media statement, saying, “While RB has acted lawfully at all times and expressly denies all allegations that it engaged in any wrongful conduct, after careful consideration, the board of RB determined that the agreement is in the best interests of the company and its shareholders. It avoids the costs, uncertainty and distraction associated with continued investigations, litigation and the potential for an indictment.”

McConnell, who is an occasional contributing writer to Corporate Counsel, said nonprosecution agreements also usually contain a statement of facts that makes clear how the company violated the law. Typically the company must accept the statement and those facts can be used against the company should there be later legal action, he explained. In this case, there was no statement of facts.

“It seems to me like they are saying, it's a civil case,” McConnell said. “But then why the nonprosecution agreement?”

The company and its general counsel, Rupert Bondy, did not return messages seeking comment. Howard Shapiro, litigation chair at Wilmer Cutler Pickering Hale and Dorr, represented the company along with partner, Kimberly Parker. Shapiro said he could not comment.

The prosecutors were mum too. The U.S. Department of Justice and the U.S. attorney's office in the Western District of Virginia, which took part in the deal, did not return messages. A spokesman for the U.S. attorney's office in New Jersey, which also took part, said that office could not comment.

Garrett, the law professor, declined to speculate on why prosecutors reached such a deal. But one observer said it was obvious that the company refused to sign anything that acknowledged wrongdoing.

And since this was an opioid case—which are high priority with federal prosecutors in the Trump administration—the government wanted a deal that let it claim victory with a record $1.4 billion penalty.

One source close to the case also said the company wanted the nonprosecution agreement on top of the civil settlement as a sort of protection against potential criminal charges later.

The civil settlement included the U.K.-based group and its subsidiary in New Jersey, Reckitt Benckiser LLC. In 2014, when the investigation arose, the group spun off a pharmaceutical subsidiary, Indivior, that no longer has an affiliation with the company.

Indivior has been indicted in the case and is scheduled to go on trial in Virginia on May 11. In the settlement, RB Group agreed to cooperate with prosecutors in that investigation.