We are accustomed to the outcome of civil and criminal investigations of suspected corporate misconduct. In civil enforcement proceedings, companies have entered into “neither admit nor deny” settlements which require, for the most part, payment of large sums of money—though recent pronouncements from the SEC suggest a toughening of approach.1 In criminal investigations, companies have entered into plea agreements or deferred prosecution agreements under which the defendant company pays a large sum of money and agrees to other remedial measures. A critical feature of this pattern is judicial deference: Courts for the most part have gone along with the bargain struck between the law enforcement authority and the corporate defendant—until recently, that is.
In several high-profile settlements, thoughtful, determined judges have questioned the merits of the deal placed before them for review, and in some cases have rejected the deals as written.2
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