Category: Investigations and Resolutions

Non-Prosecution Agreement

Also known as: NPA, non-prosecution agreement (NPA)

Simply put

A non-prosecution agreement (NPA) is an arrangement between the government and a person or company under investigation in which prosecutors agree not to file criminal charges, typically in return for the subject's cooperation and compliance with agreed conditions. It functions like a contract: the subject accepts certain obligations, and in exchange the government forgoes prosecution. It is closely related to, but distinct from, a deferred prosecution agreement (DPA).

Formal definition

A non-prosecution agreement (NPA) is a negotiated resolution between a prosecuting authority and a person or entity under investigation, structured as a contract, under which the government agrees not to bring criminal charges in exchange for the subject's performance of specified conditions, which commonly include cooperation with the investigation. In U.S. federal practice, the use of NPAs in return for cooperation is addressed within prosecutorial discretion principles (see Justice Manual 9-27.000), and such agreements are subject to the policy that charges are not to be bargained away improperly. An NPA differs from a deferred prosecution agreement (DPA): under a DPA, charges are typically filed but held in abeyance pending compliance, whereas under an NPA no charges are filed so long as the agreement's terms are met. The availability, terms, and enforcement of these agreements depend on the jurisdiction, the prosecuting authority, and the facts of the matter; this entry is educational and not legal advice.

Why it matters

Non-prosecution agreements sit at the intersection of enforcement risk and corporate governance because they represent a resolution path that allows an organization to avoid the filing of criminal charges while still accepting obligations to the government. For a board and its compliance and legal functions, understanding the NPA mechanism matters when assessing how the organization might respond to a serious investigation, what cooperation could be expected, and what the downstream governance implications of accepting agreed conditions would be. Because an NPA is structured as a contract, the terms it imposes typically shape compliance program design, reporting obligations, and internal accountability for a defined period.

The distinction between an NPA and a deferred prosecution agreement (DPA) is consequential and should not be blurred. Under a DPA, charges are typically filed but held in abeyance pending compliance; under an NPA, no charges are filed so long as the agreement's terms are met. That difference affects the public record, the leverage held by the prosecuting authority, and how the organization characterizes the matter to stakeholders. General counsel and compliance officers evaluating potential outcomes need to track which mechanism is in play, as the practical and reputational consequences differ.

These agreements also reflect the exercise of prosecutorial discretion. In U.S. federal practice, the use of NPAs in return for cooperation is addressed within prosecutorial discretion principles, and such resolutions are subject to the policy that charges are not to be bargained away improperly. Availability, terms, and enforcement depend on the jurisdiction, the prosecuting authority, and the facts of the matter, so no organization should assume an NPA is available or that its conditions are standardized. This entry is educational and not legal advice.

Who it's relevant to

General Counsel and Legal Function

Legal leadership evaluates whether an NPA is a realistic and appropriate resolution in a given investigation, negotiates its terms, and assesses how it compares to alternatives such as a DPA. Because an NPA is a contract with the government, counsel must understand the obligations accepted and the consequences of non-performance. Whether such an agreement is available depends on jurisdiction, the prosecuting authority, and the facts.

Chief Compliance Officers

Compliance officers are typically responsible for operationalizing the conditions of an NPA, which commonly include cooperation with the investigation and may include other agreed program obligations. Understanding the distinction between an NPA and a DPA helps compliance leaders anticipate the reporting, remediation, and monitoring expectations that could accompany a resolution.

Boards and Audit or Risk Committees

Boards and their relevant committees exercise oversight of enforcement exposure and the organization's response to serious investigations. While negotiating and executing an NPA is a management and legal function, the board's oversight role includes understanding the potential resolution paths, the obligations an NPA would impose, and the governance and reputational implications of accepting agreed conditions.

Internal Audit and Assurance Functions

Where an NPA imposes cooperation or compliance conditions, assurance functions may be called on to provide independent evidence about whether those conditions are being met. Their role is to assess and report, not to own the operational obligations, which sit with management.

Inside NPA

Statement of Facts / Admissions

A non-prosecution agreement (NPA) typically includes an agreed factual record describing the conduct at issue. Depending on the negotiation and jurisdiction, the entity may formally admit to some or all of these facts, or acknowledge them without a formal guilty plea. The scope of what is admitted is a negotiated point and varies case by case.

Declination to Prosecute (Conditional)

The core feature: the prosecuting authority agrees not to pursue criminal charges provided the entity satisfies stated conditions over a defined period. Unlike a deferred prosecution agreement (DPA), an NPA is generally not filed with a court and typically involves no charges being filed at all, though practice differs by jurisdiction and authority.

Compliance and Remediation Obligations

NPAs commonly require the entity to enhance its compliance program, remediate identified control weaknesses, and cooperate with ongoing investigations. Accountability for implementing these measures generally sits with management, while the board or a designated committee typically provides oversight.

Cooperation Requirements

Terms often obligate continued cooperation, which may include producing documents, making individuals available, and disclosing relevant information. The precise obligations depend on the agreement and the authority involved.

Term and Conditions Period

NPAs specify a duration during which obligations must be met. Successful completion generally results in the matter being closed; breach may permit the authority to pursue prosecution based on the underlying conduct.

Potential Monitoring Provisions

Some NPAs require an independent compliance monitor or self-reporting on remediation progress. Whether a monitor is imposed depends on the facts, the authority's assessment, and the strength of the entity's existing controls.

Financial Terms

Agreements may include monetary components such as penalties, disgorgement, or restitution. The presence and structure of any financial terms are negotiated and vary by matter and jurisdiction; this entry does not state any specific figures.

Common questions

Answers to the questions practitioners most commonly ask about NPA.

Is a non-prosecution agreement the same as a deferred prosecution agreement?

No. Although both are negotiated resolutions that allow an organization to avoid a conviction, they are generally distinct instruments. A non-prosecution agreement (NPA) is typically an agreement in which a prosecutor declines to file charges in exchange for the organization meeting stated conditions, and it is often not filed with a court. A deferred prosecution agreement (DPA) generally involves charges being filed but held in abeyance, and in many jurisdictions it is subject to some form of judicial involvement or approval. The specific mechanics, degree of court oversight, and public availability vary by jurisdiction and by the enforcement authority involved, so the terminology and effect should be confirmed against the applicable legal framework. This entry is educational and not legal advice.

Does entering into a non-prosecution agreement mean the organization has been found guilty or has no further exposure?

Not necessarily. An NPA is a negotiated resolution rather than a judicial finding of guilt, and it generally reflects a decision by the prosecuting authority to forgo charges on stated conditions rather than an adjudication on the merits. It also does not automatically eliminate other exposure: depending on the facts and jurisdiction, the organization may still face related civil litigation, regulatory actions by other agencies, proceedings in other jurisdictions, or consequences for individuals. The scope of what an NPA resolves is defined by its own terms, so those terms should be read carefully. This is a general description and not a substitute for advice from qualified counsel.

Which functions are typically responsible for meeting the conditions of a non-prosecution agreement?

Responsibility is generally shared across roles, but accountability differs. Management typically owns the operational obligations, such as implementing remediation, enhancing controls, and delivering required reporting, because these are day-to-day execution activities. The board or a relevant committee generally exercises oversight of whether management is meeting the commitments, without taking on the operational tasks itself. Compliance commonly designs and monitors the affected program areas, while internal audit or another assurance function may provide independent evaluation. Where the agreement requires an external monitor, that party sits outside these lines. The precise allocation depends on the agreement's terms and the organization's structure.

What kinds of conditions are commonly included in a non-prosecution agreement?

Conditions vary by matter and jurisdiction, but they frequently address remediation of the underlying conduct, enhancements to the compliance or risk program, cooperation obligations, and periodic reporting on progress. Some agreements provide for an independent monitor or for self-reporting arrangements, and many include financial terms. Because each NPA is negotiated to the specific facts, organizations should not assume a standard template applies; the actual obligations are those written into the particular agreement. Governance professionals generally find it useful to translate each condition into assigned owners, milestones, and evidence requirements so that fulfillment can be tracked and demonstrated.

How should an organization track and evidence compliance with an NPA's obligations?

A common practice is to build a structured obligation register that maps each requirement in the agreement to a named owner, a due date, the control or activity that satisfies it, and the documentation that evidences completion. This supports the distinction between whether a control was designed to meet the obligation and whether it is operating effectively over the relevant period. Regular reporting to the board or a committee generally helps maintain oversight, while an assurance function may independently test the evidence. The appropriate rigor depends on the agreement's terms and any reporting or monitor requirements it imposes.

What can happen if the organization does not meet the conditions of a non-prosecution agreement?

The consequences of non-compliance are defined primarily by the agreement itself and the applicable legal framework. In general terms, failure to meet stated conditions may expose the organization to the enforcement action that the NPA was intended to forestall, or to other remedies specified in the agreement. Because outcomes depend heavily on the specific terms, the jurisdiction, and the facts, organizations facing potential non-compliance should seek advice from qualified counsel rather than rely on general expectations. This entry describes the concept only and does not predict any particular result.

Common misconceptions

An NPA is the same thing as a deferred prosecution agreement (DPA).

They are related but distinct. A DPA generally involves charges filed with, and supervised by, a court, with prosecution deferred pending compliance. An NPA is typically a negotiated arrangement with the prosecuting authority under which no charges are filed and, in many jurisdictions, no court supervision applies. The availability and mechanics of each differ by jurisdiction and authority.

Entering an NPA means the entity has escaped all accountability.

An NPA is conditional and usually imposes substantial obligations, which may include admissions, remediation, cooperation, financial terms, and potential monitoring. Failure to meet the conditions can expose the entity to prosecution on the underlying conduct. Individuals are also generally not shielded by an entity-level agreement.

An NPA is a routine outcome that any cooperating entity can obtain.

Whether an authority offers an NPA depends heavily on the specific facts, the seriousness of the conduct, the quality and timeliness of self-reporting and cooperation, the state of the compliance program, and prosecutorial discretion. It is not a guaranteed or standardized entitlement, and terms are negotiated rather than fixed.

Best practices

Engage experienced external counsel early to assess whether an NPA is realistically available given the facts and the relevant jurisdiction, and to lead negotiations over admissions, conditions, and any financial terms.

Clarify governance roles at the outset: assign management responsibility for implementing remediation and cooperation obligations while ensuring the board or an appropriate committee exercises documented oversight of progress.

Scope the statement of facts and any admissions carefully, recognizing that agreed facts may have collateral consequences in related civil, regulatory, or cross-border proceedings.

Build a concrete, time-bound remediation and compliance-enhancement plan tied to the agreement's conditions, with tracking that distinguishes control design improvements from evidence of operating effectiveness.

Establish reliable processes to meet cooperation and any self-reporting or monitoring requirements, and document compliance to demonstrate good faith if the authority later reviews performance.

Treat this entry as educational rather than legal, audit, or compliance advice, and confirm the specific requirements, availability, and consequences of any NPA with qualified counsel for the applicable jurisdiction and authority.