In September 2015, however, the United States Department of Justice (“DOJ”)
announced that it would return to holding individuals accountable for corporate
This trend continued during the remainder of President Obama’s
however, there is evidence that individual prosecutions for corpo-
rate wrongdoing have declined under the Trump Administration.
While the DOJ still insists that prosecutors seek indictments against companies
guilty of corporate wrongdoing,
the DOJ has become increasingly willing to use
deferred prosecution agreements (“DPAs”) and non-prosecution agreements
(“NPAs”) as alternatives to criminal prosecution.
However, this trend has leveled
off under the Trump administration, with 2017 seeing the fewest NPAs and DPAs
entered into since 2009.
In a DPA, the prosecutor files criminal charges against a
corporate defendant, but agrees to stay prosecution of the charges and dismiss
them after a pre-set length of time, so long as the corporate defendant complies
with the terms of the DPA.
An NPA serves functionally the same purpose as a
DPA, but does not involve the filing of criminal charges.
In response to the global financial crisis of 2008, Congress passed the Dodd-
Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in July
2010 with the stated purposes of “promot[ing] the financial stability of the United
States by improving accountability and transparency in the financial system, . . .
end[ing] ‘too big to fail,’ . . . protect[ing] the American taxpayer by ending bail-
outs, . . . protect[ing] consumers from abusive financial services practices, and for
Dodd-Frank introduced significant changes to financial regula-
tion by altering more than two dozen criminal offenses, extending criminal liability
8. See Memorandum from Deputy Att’y Gen. Sally Q. Yates on Individual Accountability for Corporate
Wrongdoing (Sept. 9, 2015), https://www.justice.gov/archives/dag/file/769036/download (discussing changes to
criminal and civil provisions of U.S. Attorneys’ Manual to improve individual accountability in corporate
criminal prosecutions); Apuzzo & Protess, supra note 7.
9. See John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Jonathan M. Moses, Marshall
L. Miller, Louis J. Barash, & Carol Miller, White Collar and Regulatory Enforcement: What to Expect in 2018,
COMPLIANCE AND ENF’T (Jan. 29, 2018), https://wp.nyu.edu/compliance_enforcement/2018/01/29/white-collar-
10. See Dylan Toker, The Department of Justice is Turing Back the Clock on Corporate Accountability, THE
NATION (Mar. 6, 2019), https://www.thenation.com/article/financial-crisis-justice-department-corporate-prosecutions-
yates-memo/ (discussing a “lack of movement on individual prosecutions”).
11. U.S. DEP’T OF JUST., JUSTICE MANUAL §§ 9-28.000–9-28.1300 (2018), https://www.justice.gov/jm/
justice-manual [hereinafter JUSTICE MANUAL].
12. See David M. Uhlmann, Deferred Prosecution and Non-Prosecution Agreements and the Erosion of
Corporate Criminal Liability, 72 MD. L. REV. 1295, 1315–20 (2013) (discussing the recent proliferation of DPAs
13. See Savarese et al., supra note 9 (“In 2017, [the] DOJ entered into a total of 22 NPAs and DPAs—the
fewest since 2009.”).
14. See Christopher A. Wray & Robert K. Hur, Corporate Criminal Prosecution in a Post Enron World: The
Thompson Memo in Theory and Practice, 43 AM. CRIM. L. REV. 1095, 1104–05 (2006).
15. See id. at 1105.
16. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376
(2010); see also Damian Paletta & Aaron Lucchetti, Law Remakes U.S. Financial Landscape, WALL ST. J. (July
16, 2010), http://online.wsj.com/article/SB10001424052748704682604575369030061839958.html.
2021] CORPORATE CRIMINAL LIABILITY 673