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White Collar Update: D.C. Circuit Reaffirms Prosecutors’ Authority over Deferred Prosecution Agreements
Client Memorandum

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A recent Court of Appeals decision sharply limits the authority of judges to reject Deferred Prosecution Agreements (“DPAs”). On April 5, 2016, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) overturned a decision by the D.C. District Court that rejected a DPA between the Department of Justice (“DOJ”) and Fokker Services B.V. (“Fokker”). The D.C. Circuit held that the district court had erred by rejecting the DPA based on concerns that it was too lenient, thereby interfering with “the Executive’s long-settled primacy over charging decisions,” which according to the D.C. Circuit includes the decisions to pursue a DPA and to define its terms. The D.C. Circuit also recognized that DPAs are an “increasingly important tool” in government resolutions that could be jeopardized by such judicial intervention.