Obama DOJ Continues Deferring Corporate Prosecutions
By | July 16, 2009 1:30 pm

The use of settlements allowing corporations to avoid prosecution by paying a fine and agreeing to take specific steps to remedy previous wrongdoing, also known as deferred prosecution agreements, is still continuing in the Obama Justice Department, reports Dow Jones.

A report by the law firm Gibson, Dunn & Crutcher indicates that the department has actually been, on average, making more of these agreements in 2009 than 2008.  While there were 18 such agreements last year, the department had entered into 10 of these agreements by the mid-way point of 2009.

When asked about the effect cases relating to the economic meltdown could have, law-firm partner Joseph Warin told Dow Jones that “There could be a lot of deferred prosecution agreements coming out of that.”

Notable deferred prosecution agreements from this year include settlements with UBS AG, which admitted to helping Americans evade taxes, and Beazer Homes USA Inc., which admitted to mortgage fraud and securities fraud, the first deferred prosecution agreement stemming from investigations of the mortgage meltdown.

Under the agreements, called deferred prosecution agreements or non-prosecution agreements, a corporation typically pays a fine and agrees to take a number of steps to remedy its wrongdoing, in exchange for a government promise not to prosecute.

Notable agreements this year include settlements in which UBS AG (UBS) admitted to helping wealthy Americans evade taxes and Beazer Homes USA Inc. (BZH) admitted to mortgage fraud and securities fraud violations, the first deferred prosecution agreement tied to the mortgage meltdown.

Last month, Justice Department lawyer Gary Grindler testified at a hearing in the House of Representatives that deferred prosecution agreements ensure corporations face serious consequences for wrongdoing while minimizing the impact on innocent third parties.

But critics, including some lawmakers, have suggested that the agreements encourage disrespect for the law and fail to hold corporations fully accountable for their actions.

Rep. Steve Cohen (D-Tenn.), who was also at the hearing, said that companies “shouldn’t necessarily get a sweetheart deal because they are a corporation and be subjected to a different set of justice than an individual would.”

Another issue of concern is that the use of such agreements is not uniform.  A preliminary report from the Government Accountability Office last month, indicated that federal prosecutors varied in their willingness to enter deferred prosecution agreements, and in the conditions they included in such agreements.

Warin points out that such variances exist in agreements made by the Obama Justice Department.

Under the Beazer Homes deal, announced earlier this month, the home builder cannot make statements that contradict its acceptance of responsibility for its criminal wrongdoing, but if the company faces related lawsuits from private parties, it can argue that the government’s allegations should not apply in those cases.

“Many prosecutors won’t agree to that provision,” Warin said.

As part of the UBS agreement, prosecutors allowed the bank to continue to fight a high-stakes IRS summons that seeks the identities of 52,000 clients who may have used UBS accounts to evade taxes.

A settlement involving WellCare Health Plans Inc. (WCG) required the company to post copies of the deferred prosecution agreement and the Justice Department’s charges prominently on its Web site until the agreement expires.

The deal, announced in May, resolved charges that the company defrauded Florida’s Medicaid and Healthy Kids programs.

You can read our latest reports about the controversy surrounding deferred-prosecution agreements made by former U.S. Attorney Christopher Christie here and here.  Also, you can read our report about concern in the House of Representatives regarding the FBI’s focus on combating mortgage fraud here.

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