There is a great corporate crime web site now up and running.

It is fast.

It’s comprehensive.

And it will give you instant access to the world of corporate criminals, their defenders and prosecutors.

It’s called the Corporate Prosecution Registry.

And it’s the brainchild of University of Virginia Law Professor Brandon Garrett, author of – Too Big to Jail: How Prosecutors Negotiate with Corporations.

The database includes 3028 corporate settlements over the past 25 years — including plea agreements, deferred and non prosecution agreements.

And what will you learn?

The vast majority of those cases – 2678 (88 percent) – are with mostly smaller private companies.

Only 350 (12 percent) – are with large public companies.

Of the 2678 settlements with private companies, 2394 (89 percent) are settled with plea agreements.

How are the 350 cases with large public companies settled? Only 164 (47 percent) are settled with plea agreements.

Of the 91 Foreign Corrupt Practices Act (FCPA) cases settled with public companies, 26 were with plea agreements (28 percent), 36 were with deferred prosecution agreements (40 percent), and 29 (32 percent) were with non prosecution agreements.

And let’s say you are wondering — is there a bias against foreign companies when it comes to prosecuting FCPA cases?

Of the 26 FCPA plea agreements, fully 22 are with foreign companies — only four with U.S. companies.

University of Virginia Law Professor Brandon Garrett says that the goal of the database “is to provide comprehensive and up-to-date information on federal organizational prosecutions in the United States, so that we can better understand how corporate prosecutions are brought and resolved.”

The vast majority of settlements with smaller private companies are with plea agreements. But the majority of the 350 public company settlements were with deferred and non prosecution agreements. Why is that?

“That’s always been true,” Garrett told Corporate Crime Reporter in an interview last week. “There is this inequality. Part of the reason is that the big companies were the ones going to prosecutors saying a plea agreement just doesn’t suit us. We are a public company. It will hurt our reputation. It will harm us in ways that are difficult to predict. We are the ones that need leniency.”

“This is a reversal of the way things normally work in the criminal justice system, where the more serious the violation, the stricter the consequences. Here instead, some of the biggest companies, the public companies, were saying — no, no, no.”

“While normally a deferred prosecution agreement would be for some first time offender, some juvenile who shouldn’t be treated as a criminal, for a public company, it is their vulnerability to public opinion, to collateral consequences, to regulatory consequences, that necessitates this out of court deal.”

“We have started to see more skepticism of that point of view. It turns out that we can convict large public companies and there need not be any dire consequences. Prosecutors understandably don’t want to destroy large companies. And that hasn’t happened to companies that have pled guilty. One reason is that regulators have been involved in negotiating these agreements and worked it out so that there are not catastrophic consequences for the company. Those regulatory consequences are still often not as clear as they should be.”

“There was also a movement to try and harmonize the standards for regulatory suspension and debarment over the last few years. I don’t know whether that effort is going to continue over the next few years either.”

What percent of the universe of corporate crime cases do you think are in the database?

“We think we have most of them,” Garrett said.

“We can’t be 100 percent sure. We know that there are these antitrust leniency agreements that are not public. Those are confidential for a good reason. We suspect that for the public companies we are not missing anything. These cases tend to be well reported in the news. That said, we are always at least six months or so behind. There are cases we know about and that we are tracking where the judgment hasn’t been entered and we keep having to check the docket sheets to see whether the judgement has been finally entered. That’s the point where we enter it into our database. We are always playing a game of catch up.”

“Often you will hear that a major bank or company has entered a plea and agreed to settle with the Department of Justice. But the sentencing hearing may take place many months afterwards. And there still might be disputes as to what the ultimate fine will be. We don’t enter the case into the database until the judgement is actually entered. That means that we are always running behind.”

“The deferred and non prosecution agreements, since they are settled largely out of court, those can be entered more quickly because there is less time between the announcement and the formal execution of the agreement.”

“There is another type of agreement we think we are missing. Those are the agreements that the prosecutors and the company have chosen not to make public. We know it happens. Our First Amendment here at the University of Virginia filed a FOIA lawsuit and successfully obtained several dozen agreements that we had heard about but had never been released publically.”

“We knew that these cases had been settled. There had been some kind of press release or news report. But when we called the U.S. Attorney, they would say it had been sealed by agreement between the parties. We filed under FOIA and the Department of Justice finally agreed that these were public documents and we could obtain them.”

“That said, most of them were non prosecution agreements. Deferred prosecution agreements you can see entered on the judge’s docket.”

“Our concern is that there may be other non prosecution agreements out there where the company wisely says — keep this agreement under wraps, please don’t issue a press release or breath a word about it to anyone.”

Do you know that such agreements exist?

“We have heard anecdotally that it happens. For that reason we asked the Department of Justice last year if they would share their complete list of all corporate prosecution settlements since they now maintain such a list to track them internally. We wanted to see what we were missing. They said they would look into it. We never heard back.”

“I think that means we now have another FOIA lawsuit to file. We would like to get their complete list of agreements to see if there are any of these non prosecution agreements that have not been formally sealed in court, but have never been publically announced.”

Can you look at an agreement with a company with a deferred and non prosecution agreement and say — this company committed a crime?

“The SEC has these neither admit nor deny clauses in their settlements. But in these deferred and non prosecution agreements, the companies almost always admit that a crime was committed, that their employees committed it and the company accepts responsibility for the crime.”

“The company is absolutely admitting and accepting responsibility for criminal conduct. It’s not like a purely civil agreement where the company admits there are violations but not crimes.”

“In these cases, the company is being criminally investigated and it acknowledges that it committed a crime in settling the case. They typically admit that there is a crime. Every once in awhile, you will see an agreement where they don’t admit specifically which crime. There is variation as to how detailed the statement of facts is.”

“They might not always be required to admit a lot of detail as to what the criminal scheme was and who was involved. But it is standard for prosecutors to insist the company accept responsibility and admit that a crime was committed. In fact, the agreements usually say that the company can’t later deny that it committed a crime or contest the statement of facts. If it did so, it would be in breach of the agreement.”

When people see it reported that a company entered into a non prosecution agreement, they think that the government didn’t prosecute the company.

“That’s not what a non prosecution agreement is. In antitrust, we often don’t see the agreement at all. Under the Antitrust Division’s leniency program, those agreements are not made public because the company usually closely cooperates in prosecuting the other members of the price fixing cartel.”

“And it’s not that the company didn’t commit a crime. It’s that the company was the first to report and become a government witness against the other members of the cartel.”

“That’s been an effective program, but you never directly hear about the first company that came in the door.”

[For the complete q/a transcript of the Interview with Brandon Garrett, see page 31 Corporate Crime Reporter 24(11), Monday June 5, 2017, print edition only.]