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Victims' Rights In Corporate Deferred Prosecutions
Deferred Prosecution Agreements (DPAs) have become a significant part of white-collar criminal practice. Pioneered in the United States, they are now authorized (with modifications) in the United Kingdom, France, Canada and elsewhere. DPAs have been accepted as a means of achieving corporate remediation and reform without causing the collateral harm of a guilty plea. This outlook is reflected in Department of Justice policy developed over many years, including recent policy statements and speeches.
But DPAs (and nonprosecution agreements, or NPAs) are not without controversy. These agreements have been attacked as too lenient, not forcing companies to be held accountable for illegal conduct. They are also seen as a way for prosecutors to appear tough on white-collar crime while not bringing charges against individuals.
Recent court decisions involving the Boeing Co. (Boeing) highlight another challenge posed to DPAs (and NPAs) — from victims who claim that their rights were not adequately considered before the government entered into a DPA. Boeing entered into a DPA with the Department of Justice in 2021 following two plane crashes attributed to a software design flaw concealed by the company. Victims of the crashes claimed that the DOJ had failed to consult with them prior to the deal. U.S. District Judge Reed O'Connor of the Northern District of Texas agreed with the victims, but, after months of further litigation, ultimately held that the court lacked the authority to order a "substantive review and disapproval or modification" of the deal. See United States v. Boeing, Dkt No. 185, Case No. 4:21 CR 05 (N.D. Tex. Feb. 9, 2023).
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