Which company will receive a deferred prosecution and which will not? 

It’s a good question and perhaps a question that no one knows the answer to except DOJ, and it sounds like they’re not talking. 

Leonard Post has a wonderful article in the National Law Journal (law.com) here that looks at this question examining companies that have been fortunate  to not be prosecuted as a result of a deferred prosecution agreement and some that have not been as successful in securing such an agreement with the government. 

Is it based upon cooperation with the government, the importance of the company to the government (see Andy Good’s comment in the article), or just plain luck?  In any event should it be solely at the discretion of the government?  And should the government be able to wheel and deal on each individual case to obtain information they desire and prosecute when the information is either not forthcoming or nonexistent? 

Perhaps the most ironic aspect of this entire scenario is that on one hand the government is pushing for strict adherence to the sentencing guidelines in order to have consistency in sentencing; but the real consistency will always be lacking if there is no transparency as to why some companies will be entitled to a deferred prosecution when others will not.

(esp) (with thanks to Jack King at NACDL for alerting us to this article)