Today I moderated a terrific webcast on a topic that is becoming increasingly important: how to best resolve government investigations of corporations through the use Deferred Prosecution Agreements (“DPAs”) and Non-Prosecution Agreements (“NPAs”).

DPAs and NPAs are a relatively recent but significant tool U.S. regulators are increasingly relying on to resolve allegations of corporate misconduct.  In short, DPAs and NPAs are agreements by the government to forego enforcement action in exchange for the company's agreement not to commit further violations of the law and to perform specific compliance and cooperation obligations.  In 2011, U.S. regulators have already secured nearly $2 billion in fines and other penalties and are on pace to equal or exceed the number of investigations resolved using these agreements in prior years.  In addition to the DOJ's Fraud Section, which uses DPAs and NPAs as its primary means of resolving corporate FCPA investigations, various other entities including the SEC, DOJ's Antitrust Division, and numerous U.S. Attorneys' Offices are increasingly using DPAs and NPAs to settle corporate investigations.

But all settlements are not created equal, and there are ways for companies to actively manage the process to secure the best outcome possible.  A company's action (or lack thereof) can often determine whether it receives a DPA or NPA, whether the government requires a corporate monitor, and the amount of fines and penalties that must be paid.  In today's webcast, Joe Warin and Brian Baldrate of law firm Gibson Dunn, and Joseph Spinelli of Navigant, discussed issues including: 

The steps a company can take today—before settlement discussions begin—to set the stage for a more favorable outcome;

Considerations that impact a decision to voluntarily disclose misconduct to regulators;

Effective strategies for negotiating with enforcement agencies and implementing the terms of settlement agreements;

How to avoid a corporate monitor, and, if one is required, how to foster a cooperative relationship with the monitor;

Mitigating the collateral consequences of settlement agreements (e.g., suspension and debarment, civil litigation, business and reputational risks); and

Managing incidents as they arise and avoiding a breach.

The webcast included some particularly good materials, which are available here. The full webcast can be viewed below.