Ever since non-prosecution agreements and deferred prosecution agreements have become a prominent feature of the Foreign Corrupt Practices Act landscape, I’ve noted that such alternative resolution vehicles are troubling for two distinct, yet equally problematic public policy issues.
In short, alternative resolution vehicles allow “under-prosecution” of egregious instance of corporate bribery, while at the same time facilitate the “over-prosecution” of business conduct. (See here for the 2010 article “The Facade of FCPA Enforcement,” here for a prior post among others, and here for the 2015 article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement).
As to the former, kudos to Judge Theodore Chuang (D.Md.) for recognizing this as well.