Deferred and non-prosecution agreements explained

Where these agreements sit

Federal prosecutors who investigate a company can decline to prosecute, charge it, or resolve the case by agreement. The Justice Manual says non-prosecution and deferred prosecution agreements "occupy an important middle ground" between declining prosecution and securing a conviction ¹.

A DPA involves a deferred prosecution. Federal speedy-trial law excludes from the trial clock any period in which prosecution is deferred by the government under a written agreement with the defendant, with the approval of the court ². The Boeing DPA of 7 January 2021, for example, was entered in connection with a criminal information filed in the Northern District of Texas ³.

The Justice Manual says that absent exceptional circumstances, corporate criminal resolution agreements will be published on the Department's website ¹.

Factors prosecutors weigh

Justice Manual 9-28.300 lists factors for deciding whether to charge a company or resolve the case another way ¹. The list, as published in the manual section updated May 2024, is below ¹.

• The nature and seriousness of the offense, including the risk of harm to the public ¹.
• How pervasive the wrongdoing was in the company, including complicity or condoning by management ¹.
• The company's history of misconduct, including prior criminal, civil and regulatory actions ¹.
• The company's willingness to cooperate, including as to wrongdoing by current and former employees ¹.
• The adequacy and effectiveness of the compliance program at the time of the offense and at the time of the charging decision ¹.
• Timely and voluntary self-disclosure ¹.
• Remedial actions, including restitution and discipline ¹.
• Collateral consequences, including disproportionate harm to shareholders and others not personally culpable ¹.
• The adequacy of civil or regulatory remedies, the prosecution of responsible individuals, and the interests of victims ¹.

What an agreement contains

Justice Manual 9-28.200 lists the reasons for imposing an independent compliance monitor or other compliance undertaking as one consideration for resolution agreements ¹. The Boeing release shows the elements in one agreement. Boeing was charged with one count of conspiracy to defraud the United States ³. The release described total payments of over US$2.5 billion ³.

Self-disclosure and declinations

In the Justice Manual chapter on the Foreign Corrupt Practices Act, section 9-47.120 sets out the Corporate Enforcement and Voluntary Self-Disclosure Policy, updated January 2025 ⁴. Where a company voluntarily self-discloses, fully cooperates and remediates in a timely way, "there will be a presumption that the company will receive a declination absent aggravating circumstances" ⁴.

To qualify, the company must pay all disgorgement or forfeiture and any restitution or victim compensation ⁴. The policy says declinations under it will be made public ⁴. A Criminal Division memo of 5 June 2025 sets guidance on coordinating corporate penalties across parallel criminal, civil, regulatory and administrative proceedings ⁶.

Recent activity

On 22 January 2026 the Justice Department said its Fraud Section brought 15 corporate enforcement actions in 2025, including indictments against three companies ⁵. It described those as the Section's first corporate indictments in over 15 years ⁵. The release did not break the 15 actions down by DPA, NPA or plea ⁵.