In 2021, the U.S. Department of Justice (“DOJ”) articulated a renewed prosecutorial vision and strong statements and took decisive moves to expand the scope of enforcement efforts and devote more resources to them. Enforcement activity resulting in corporate non-prosecution agreements (“NPAs”) and deferred prosecution agreements (“DPAs”) was lower in 2021 than in 2020, but generally consistent with the trend in the past two decades. We expect continued aggressive corporate enforcement in 2022 as part of President Biden’s stated initiative to revisit standards of corporate prosecution.
In this client alert, the 25th in our series on NPAs and DPAs, we: (1) report key statistics regarding NPAs and DPAs from 2000 through 2021; (2) analyze statements by DOJ about recalibrating corporate enforcement policies and a coming effort to “surge resources” in corporate enforcement; (3) take an in-depth look at the use of corporate resolutions by DOJ’s National Security Division (“NSD”); (4) provide an update on the SEC whistleblower program and its implications for NPAs and DPAs; (5) summarize 2021’s publicly available DOJ corporate NPAs and DPAs since our 2021 Mid-Year Update; and (6) survey recent developments in DPA regimes abroad.
Chart 1 below shows all known DOJ NPAs and DPAs from 2000 through 2021. Of 2021’s 28 total NPAs and DPAs, 7 are NPAs and 21 are DPAs.[1] The SEC, consistent with its trend since 2016, did not enter into any NPAs or DPAs in 2021.
Chart 2 reflects total...
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