Law360 - Lessons From Fokker On Cooperating With The Government

    View Authors May 2016

    Thomas E. Zeno and Dalia Abu-Eid of Squire Patton Boggs co-authored the article “Lessons From Fokker on Cooperating With the Government,” in the April 12, 2016, issue of Law360, discussing the implications of the DC Circuit’s surprising and resounding decision in Fokker v. US. The following is an excerpt from the article:

    “In a surprising and resounding decision in favor of both the federal government and corporate defendants that choose to cooperate with the government, a unanimous panel of the D.C. Circuit Court granted the government’s petition for writ of mandamus to vacate and remand the district court decision. The D.C. Circuit panel ruled that the district court “significantly overstepped” its authority when it refused to toll the speedy trial clock during the pendency of a deferred prosecution agreement (DPA). Despite tough questioning during oral argument, the three-judge panel accepted the government’s argument that the district court had intruded on the constitutional authority of the executive branch. The panel declared that the prosecutor alone controls the terms of a DPA. The core message permeating the panel’s decision, as stated repeatedly by Judge Sri Srinivasan, boils down to one point: the executive branch retains constitutionally rooted primacy over criminal charging decisions. This, according to the panel, trumps any authority granted to the district court under the Speedy Trial Act.

    The Fokker decision carries important lessons for corporate and individual defendants because it falls amid significant changes in policy regarding the prosecution of companies and individuals in corporate fraud cases, as represented by the Yates Memorandum and the new settlement policy covering the Foreign Corrupt Practices Act.”