Publication

"D.C. Circuit Vacates District Court Decision Refusing to Approve Fokker’s Deferred Prosecution Agreement with the Department of Justice and Clarifies the Standard for Evaluating Deferred Prosecution Agreements"

The D.C. Circuit’s long-awaited decision in United States v. Fokker Services B.V.,  issued on April 5, 2016, held that Judge Richard J. Leon of the Federal District Court for the District of Columbia abused his discretion in refusing to approve a proposed deferred prosecution agreement between the Department of Justice and Fokker Services B.V.  Judge Leon rejected the proposed deferred prosecution agreement (“DPA”) under the guise of declining to extend time to commence a criminal trial under the Speedy Trial Act.  Rather than defer to the Department of Justice’s exercise of its prosecutorial discretion to enter into the DPA, the court addressed the DPA’s substance and concluded that the prosecution had been too lenient in agreeing to, and structuring, the DPA, and failed to include, among other things, any criminal charges against individual company officers.
 
This Stroock Special Bulletin provides an overview of the Fokker D.C. Circuit decision, in which the court, in an opinion authored by Circuit Judge Sri Srinivasan, vacated Judge Leon’s decision and remanded, holding that the Speedy Trial Act “confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government bring different charges or should charge different defendants,” and did not authorize courts “to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.”  The D.C. Circuit joins other courts, including the Second Circuit, in limiting substantive review by district courts of regulatory settlements.
 

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