Imagine that you represent, as outside or in-house counsel, a publicly traded corporation that has recently fallen under the specter of a government investigation. Your internal investigation has revealed accounting misconduct on the part of several employees that will almost certainly result in their indictment. You receive a call from the chief of the Financial Crimes Unit in your jurisdiction’s U.S. Attorneys’ Office, who informs you that the misconduct went beyond the actions of a few rogue employees and permeated the core of the corporation’s business.
The prosecutor indicates that she could easily obtain an indictment of the corporation itself, but is willing to consider another, less onerous alternative: entry into a deferred prosecution agreement or perhaps even a nonprosecution agreement. By entering into and then honoring such an agreement, your client would avoid indictment, but in exchange must agree to implement remedial measures — among them the appointment of an independent monitor with responsibility for overseeing the corporation’s business for the next three years. What, she asks, is your response?
