The Justice Department regularly announces corporate crime settlements with deferred and non prosecution agreements.
Sometimes they make the agreements public, sometimes they don’t.
And over the years, corporate crime defense attorneys have hinted that in fact there exist deferred and non prosecutions agreements that have not been announced.
Do such undisclosed corporate crime settlements exist?
We put that question to the Justice Department.
“With regard to the Justice Department’s Criminal Division, all the corporate resolutions are public,” wrote Department spokesperson Peter Carr. “I do not have information on any corporate resolutions brought by other litigating divisions or U.S. Attorney’s Offices.”
According to a December 2009 General Accountability Office report, the Justice Department has an internal Litigation Case Management System that tracks all deferred and non prosecution agreements.
When asked about this, Carr wrote – “I checked and we don’t have a public list of all corporate resolutions. According to the Executive Office of U.S. Attorneys, all of the resolutions they are aware of were made public.”
But what about the internal Litigation Case Management System?
“As I said, there is not a public list of corporate resolutions,” Carr wrote.
But there is an internal list.
And University of Virginia School of Law research librarian Jon Ashley wants the Justice Department to make that list of corporate deferred and non prosecution agreements public.
He has filed a Freedom of Information Act (FOIA) request to get the list.
Along with his colleagues at the Virginia Law Library, Ashley has put together one of the best publicly available corporate crime databases. It’s called the Corporate Prosecution Registry. (Another good one is the Good Jobs First Violation Tracker database.)
There are 3,485 cases in the registry. And you can sort it by type of disposition – acquittal, dismissal, declination, deferred prosecution, non prosecution, plea or trial conviction.
And you can sort it by type of crime – Foreign Corrupt Practices Act (FCPA), fraud, false statements, immigration, among others.
Ashley says that while the registry has no way to determine the size of the company, he believes the vast majority of companies in the database are smaller companies.
And a quick search of the registry reveals that 2,743 out of the 3,485 dispositions are pleas. That’s 79 percent pleas.
Compare that to the FCPA dataset – the foreign bribery cases. Most of those companies are large multinational corporations. There are 174 FCPA cases in the registry.
Out of that only 46 are pleas (26 percent), 63 are deferred prosecutions (36 percent), 41 are non prosecutions (24 percent), 24 are declinations (14 percent). So three out of four are other than pleas.
That fits a pattern that these kinds of corporate negotiated settlements are the result of a power dynamic.
The big companies have the big law firms and the power to demand these alternative settlements. The smaller companies are forced to plead guilty.
How did the Corporate Prosecution Registry get started?
“Nine years ago or so, I was at the reference desk,” Ashley told Corporate Crime Reporter in an interview last month. “And Brandon Garrett, who was a professor here, wrote in with a question. He asked for help in trying to get a hold of a few deferred and non prosecution agreements. I found those. And then he came back to me again with another set of agreements he was trying to find. I helped him find those as well.”
“He subsequently went off and testified in front of Congress about this phenomenon of corporate settlements. At that time, it was clear that the Department of Justice didn’t have these in any type of centralized repository. I asked Brandon –if we have them, why not put them up and make them available for others to see? He was completely on board with that. And that is how the project got started.”
“First we started off collecting primarily non prosecution and deferred prosecution agreements. And over time, we have added plea agreements, dismissals – any time the Department of Justice goes after some sort of corporate entity, we try to track it and put it into the database.”
Right now how many cases are in the database?
“About 3,500 entries – dismissals, plea agreements, deferred prosecution agreements, non prosecution agreements.”
“We have also collected all U.S. District Court cases – tens of thousands of them – in which the U.S. was a party. The overwhelming number of them deal with individuals. We would like to go through these and extract the corporate entities from these.”
And you would do that to see whether you are missing cases from your database of corporate resolutions?
“Yes.”
What would be your guess as to how many you are missing?
“We don’t know.”
Your database is federal corporate crime cases only. And it is based on public reporting. Every time you see a case, you add it?
“Correct. We are taking cases out of Pacer, running alerts on Google News and other news sources. It’s all pretty much public sources. That being said, we know that there are agreements that the Department of Justice has struck that have not been made public.”
You have sued to get those agreements in the past.
“Yes, I have done that twice. And hopefully I don’t have to do that a third time.”
These are cases where the Justice Department puts out a press release but has not released the settlement agreement. You have sued to get those. Have you gotten them?
“Yes. They are all now available on the site. In the past two months, I submitted another batch of FOIA requests for the same kind of thing –13 non prosecution agreements that haven’t been made public. There is a press release about them, but the agreements themselves have not been made public.”
That’s the third batch.
“Yes. There are thirteen cases. These are all non prosecution agreements. We filed a FOIA request to get copies of those agreements.”
“One of the other things in the FOIA request is based on a 2009 GAO report. It said that in 2009, the Department of Justice, through its Litigation Case Management System, started keeping track of these corporate agreements. And they should be maintaining a list.”
Those cases are all in your database?
“Possibly, but possibly more. If the Department of Justice is striking agreements with companies but not disclosing them – that’s what we are looking for.”
You want the Department of Justice’s internal list of corporate settlement agreements?
“Correct. We want to see if the Department of Justice is making all of these agreements public, or if there are agreements that they are not making public. The primary motivation is that we want as robust a database as we can possibly build. And we want to compare what we have to what the Department of Justice says they have. That seems like a pretty good check. The FOIA has been filed and we are still waiting on a response.”
Anything else we should know about the registry?
“It has been completely revamped. It has a full relational database behind it now. We will have a better search feature at some point. We hope to be able to add more data to it yearly than we could in the past.”
“After we go through this set of U.S. cases and extract out corporate entities, we will add those to the dataset as well. And anything we find from the FOIA requests to the Department of Justice, we will add those to the database.”
“We are always open to suggestions on how to improve the registry. If people have ideas, send them along. We look at the registry as a public resource. We take people’s ideas into consideration to make the site better and more usable.”
[For the complete Interview with Jon Ashley, see 34 Corporate Crime Reporter, 25(14), Monday June 22, 2020, print edition only]