The Public Interest in Corporate Settlements

Abstract

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and securities regulation. Private settlements, regulatory settlements, and criminal prosecutions each bring with them different statutory and court-made procedures for approval in and out of court. Although judges have occasionally disagreed about the scope of that review, it is understood that judicial review is needed to ensure that the public interest is met. Congress has increasingly enacted statutes calling for public interest review of corporate settlements. Yet when government actors settle with corporations, courts too often presume the public interest and neglect statutory guidelines. In this Article, I explore how standards in disparate areas raise a common question: how should judges assess the public interest when corporations settle with the government? A common field of law, and perhaps more important, equity, governing judicial review of these complex corporate settlements deserves study. In this Article, I argue that common equitable principles govern in the courts, but should be clarified and developed further in judicial rulings, regulations, and statutes, using as their lodestar the equitable concept of the public interest.

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