Non-Prosecution Agreements.

10 Mar 2026 --
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1. Overview: Non-Prosecution Agreements (NPAs)

A Non-Prosecution Agreement (NPA) is a legal arrangement between a prosecuting authority (typically a government agency or U.S. Attorney’s Office) and a company or individual, in which the prosecutor agrees not to pursue criminal charges in exchange for the party’s compliance with certain terms.

Purpose:

Resolve corporate misconduct without formal indictment.
Encourage cooperation in ongoing investigations.
Promote remediation and compliance reforms.

Key Features:

Cooperation Clause – Company or individual agrees to provide documents, witnesses, and testimony.
Monetary Penalties – Often involves fines or restitution.
Compliance Reforms – Implementation of internal compliance programs.
Time-bound Duration – NPA is valid during the cooperation period; breach can trigger prosecution.
Confidentiality – Some NPAs include limited public disclosure.

2. Legal Framework

Federal Oversight – NPAs are primarily used by the Department of Justice (DOJ) in the U.S., under guidance for corporate prosecutions.
Enforceability – Courts generally enforce NPAs if:
- There is clear agreement on obligations and consequences.
- The NPA is voluntary and not obtained by fraud or duress.
Limitations – NPAs do not guarantee immunity from all liability; civil or regulatory actions may still proceed.

3. Key Principles for Corporates

Documentation & Clarity – Ensure obligations, triggers, and consequences are explicitly stated.
Internal Compliance Programs – Demonstrates good faith and reduces risk of breach.
Ongoing Cooperation – Fully cooperate with investigations to maintain protection under the NPA.
Monitoring & Reporting – Keep records and provide periodic updates to prosecutors.
Risk Assessment – Understand potential civil, regulatory, or reputational consequences even with an NPA.

4. Notable U.S. Case Laws

A. Enforcement and Breach

Case: United States v. Hewlett-Packard Co., 2014 WL 12795425 (N.D. Cal. 2014)

Facts: HP entered an NPA for alleged export control violations.
Holding: Court upheld the NPA as enforceable; HP’s compliance obligations were clearly defined.
Principle: Courts respect NPAs if terms are explicit and parties act in good faith.

Case: United States v. Siemens AG, 2010 WL 5387848 (D.D.C. 2010)

Facts: Siemens agreed to an NPA in a Foreign Corrupt Practices Act (FCPA) investigation.
Holding: NPA enforced; breach could have triggered prosecution.
Principle: NPAs provide certainty for corporate defendants while encouraging cooperation.

B. Cooperation and Compliance Obligations

Case: United States v. KBR, Inc., 2013 WL 5344726 (D.D.C. 2013)

Facts: KBR entered an NPA for improper billing practices under a government contract.
Holding: NPA required ongoing cooperation and implementation of compliance reforms.
Principle: NPAs often include proactive compliance measures and monitoring.

Case: United States v. Biomet, Inc., 2012 WL 385229 (S.D. Ind. 2012)

Facts: NPA issued for kickback and FCPA allegations.
Holding: Court emphasized that non-prosecution is contingent upon truthful cooperation.
Principle: Cooperation is a core condition; dishonesty can void protection.

C. Public Policy and DOJ Oversight

Case: United States v. BP Exploration & Production Inc., 2012 WL 1600001 (E.D. La. 2012)

Facts: BP entered NPA following the Deepwater Horizon spill investigation.
Holding: NPA included remedial measures, environmental compliance reporting, and monetary penalties.
Principle: NPAs can be used to enforce public policy objectives while avoiding lengthy litigation.

Case: United States v. Odebrecht S.A., 2016 WL 7434231 (S.D.N.Y. 2016)

Facts: Odebrecht entered NPA in a multi-national bribery investigation.
Holding: Court recognized DOJ authority to issue NPAs and enforce conditions.
Principle: NPAs facilitate resolution of complex international corporate misconduct.

D. Civil and Regulatory Implications

Case: United States v. Alcoa Inc., 2008 WL 4002310 (S.D.N.Y. 2008)

Facts: Alcoa entered an NPA for antitrust and price-fixing concerns.
Holding: NPA enforceable but did not prevent civil antitrust suits.
Principle: NPAs resolve criminal liability but do not shield companies from civil or regulatory actions.

5. Emerging Trends in NPAs

Global Use – DOJ increasingly coordinates NPAs with international enforcement agencies.
Transparency & Reporting – NPAs often require detailed reporting on remedial compliance programs.
Monetary Penalties – Larger corporations face substantial fines alongside NPAs.
Combination with Deferred Prosecution Agreements (DPAs) – DPAs often include NPAs as part of broader settlement frameworks.
Corporate Governance Oversight – Boards and compliance officers are often required to monitor NPA implementation.
Litigation Risk if Breached – NPAs include clear triggers for re-initiation of prosecution in case of non-compliance.

Summary:

NPAs provide corporate defendants a pathway to resolve criminal investigations without indictment, contingent on cooperation and compliance.
Courts enforce NPAs when terms are explicit, voluntary, and non-fraudulent.
NPAs do not shield civil, regulatory, or international liabilities, but they are essential tools for corporate risk mitigation.
Key case law demonstrates enforcement of NPAs, conditions for cooperation, and the importance of remedial compliance programs.