As the use of deferred- and non-prosecution agreements to settle government investigations has skyrocketed since 2000, regulators have found new ways to deploy such agreements in 2013, according to Gibson, Dunn & Crutcher’s “2013 Mid-Year Update on Corporate Deferred Prosecution Agreements and Non-Prosecution Agreements.”

Based on publicly reported figures, the Department of Justice’s Antitrust Division entered into its first DPA in February (together with the DOJ’s Fraud Division), settling with the Royal Bank of Scotland. That same month, the U.S. Attorney’s Office for the District of Puerto Rico also signed its first DPA, with LLC Wholesale Supply.

Then in April, the Securities and Exchange Commission for the first time used an NPA to settle an antibribery case, reaching an agreement with Ralph Lauren over illicit payments in Argentina.

All in all, the DOJ has entered into 257 publicly disclosed DPAs or NPAs since 2000, and the SEC, since 2010, has signed onto six, Gibson Dunn reports—with a total of more than $37 billion in monetary penalties.

“As DPAs and NPAs have grown—both in number and size of monetary recoveries—so has the universe of prosecutorial entities employing them,” the Gibson Dunn report notes. “And so too has the list of unlawful types of conduct that can lead to such an agreement.”

Let’s review:

2013 allegations by the numbers

The 13 agreements prosecutors have reached with companies this year “span the spectrum of corporate conduct,” according to Gibson Dunn, with fraud and antibribery charges making up the bulk of the primary allegations. Here’s how the total number of NPAs and DPAs breaks down by category:

  • Controlled Substances Act: 1
  • False Claims Act: 1
  • Foreign Corrupt Practices Act: 4
  • Fraud: 4
  • Trade-related: 1
  • Food, Drug, & Cosmetic Act: 2

New territory for DOJ Antitrust Division

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