Deferred prosecution agreements: part of the problem or part of the solution?

Last week, Assistant AG Lanny A. Breuer, left, head of the DOJ’s criminal division, talked about the use and benefits of deferred prosecution agreements in corporate enforcement actions.

Not everyone liked Breuer’s explanation.

But we did.

DPAs don’t stack the deck in favor of the DOJ. Respondeat superior does that.

DPAs instead help the DOJ and corporate defendants move forward to resolve criminal activity by employees and agents that’s attributed to the company. 

Respondeat superior is an extreme doctrine. The DOJ didn’t invent it but has to live with it, as do corporate defendants.

So finding ways to soften respondeat superior is a good thing.

Fixing it — through a good-faith defense — would be better.

But until that happens, DPAs look like the best option.

*     *     *

Here’s what Breuer said.

His substantive remarks start at 7:30 on the clip.