Analyze Counterparty Markup Of Deferred Prosecution Agreement

---
name: analyze-dpa-government-counter-markup
task_id: white-collar-defense-investigations/analyze-counterparty-markup-of-deferred-prosecution-agreement
description: Negotiation analysis memo comparing a government counter-markup of a deferred prosecution agreement against a prior defense markup, identifying gaps in undefined terms, monitor scope, cooperation obligations, payment structure, statement-of-facts edits, and other material provisions where the government has rejected or modified defense positions.
activates_for: [planner, solver, checker]
---

# Skill: Analyze Government Counter-Markup of Deferred Prosecution Agreement

## 1. Subject-matter triage

- Treat the government counter-markup, the original agreement form, the defense markup, transmittal emails, and incorporated attachments as one source set; do not analyze any provision in isolation if a cross-reference changes its meaning.
- If the counter-markup appears to touch more than one business line, investigation topic, or resolution track, enumerate those tracks before analysis and assess each separately.
- Separate true textual changes from stylistic edits; only the former drive risk, leverage, and proposed response.

## 2. Failure modes the skill is correcting

- Undefined critical terms are accepted without tracing how they operate as breach triggers, cooperation hooks, or scope expanders.
- Government rejection of defense positions is treated as background rather than as the central negotiation signal.
- Incorporated but missing attachments are overlooked, leaving obligations indeterminate.
- Statement-of-facts edits are not tested for their effect on parallel civil, regulatory, or criminal exposure.
- Monitor, cooperation, public-statement, successor, clawback, and payment provisions are compared superficially rather than by downstream effect.
- The memo describes issues without tying each one to severity, related provisions, and a concrete negotiating response.

## 3. Legal frameworks / domain conventions that apply

- A DPA is typically structured around the charging language, statement of facts, term, monetary obligations, compliance undertakings, cooperation duties, breach and cure mechanics, public-statement restrictions, and attachments.
- Cross-referenced attachments matter even when not attached; if the body assumes their existence, the scope of the duty may be incomplete until the missing material is located.
- Undefined or subjective terms can function like near-strict obligations because breach may turn on imprecision rather than intent.
- The statement of facts is not merely narrative; it can shape admissions, parallel civil theories, and the company’s ability to maintain consistent positions elsewhere.
- Public-statement provisions should be tested against the company’s right to preserve good-faith legal arguments in related proceedings and against any rule or policy cited in the draft.
- Cooperation obligations should be checked for practical control limits, especially as to former employees and third parties.
- Monitor provisions should be tested for business-line fit, access breadth, reporting cadence, fee controls, and approval mechanics.
- Clawback, payment, offset, and schedule provisions must be read together to determine actual financial exposure and operational feasibility.
- Successor and transfer language should be checked for overbreadth relative to the conduct at issue and the agreement’s intended scope.

## 4. Analytical scaffolds

1. **Change log first**: Identify every substantive departure the government made from the defense markup and the original form; do not skip directly to conclusions.
2. **Issue-by-issue comparison**: For each issue, state the defense position, the government counter-change, the legal or commercial risk, and the proposed response.
3. **Severity and leverage**: Assign an explicit ordinal severity to each issue and justify it in one line.
4. **Downstream consequence test**: For each issue, explain how it affects exposure, operations, litigation posture, future deal flexibility, or compliance burden.
5. **Clause interaction test**: Cross-reference any related provision, schedule, attachment, or correspondence that changes the analysis.
6. **Statement-of-facts analysis**: Track every material SOF edit and note whether it narrows, broadens, or shifts attribution, knowledge, or conduct framing.
7. **Undefined-term test**: Flag any term that creates obligations, breach risk, or discretionary power without objective criteria.
8. **Control-limit test**: Check whether cooperation and production duties are limited to what the company can reasonably obtain or compel.
9. **Monitorship test**: Assess scope, access, budget, and reporting against the conduct and business units actually implicated.
10. **Monetary-terms test**: Read payment, offset, and recovery language together; verify dates, sequence, and administrative workability without reproducing internal arithmetic.
11. **Parallel-effects test**: Where the draft can affect other proceedings, identify the legal authority or practice rule that supports the concern and the practical consequence.
12. **Authority-grounded conclusions**: When stating a legal proposition, anchor it to the governing statute, rule, regulation, or recognized doctrine cited in the source set or standard practice.

## 5. Vertical / structural / temporal relationships

- Compare the original draft, defense markup, and government counter-markup in that order so the net movement is clear.
- If a provision depends on an attachment or schedule, treat the attachment as downstream of the body but upstream of performance; missing attachments are a priority issue.
- If a clause changes the SOF, treat that change as vertically upstream of public statements, breach risk, and related civil positions.
- If the government narrows one provision while widening another, note the tradeoff rather than evaluating each in a vacuum.
- Track timing obligations in sequence: execution, disclosure, payment, reporting, certification, cure, and breach windows.

## 6. Output structure conventions

- Deliver a negotiation analysis memorandum, not a cleaned draft or a generic summary.
- Use a conventional memo shape: brief intro, prioritized issue analysis, negotiation leverage assessment, and closing recommendations.
- For each issue include:
  - severity level,
  - the defense’s prior position,
  - the government’s counter-markup,
  - why the change matters,
  - the governing authority or practice principle supporting the concern,
  - the recommended negotiating response.
- Group closely related edits only when their legal effect is the same; otherwise keep them separate.
- End with a concise overall assessment of where the parties stand and a Recommended Actions section with imperative next steps, responsible roles, and timing anchors drawn from the source materials.
- Do not rely on formatting alone to convey changes if the memo is later converted into another format; make textual descriptions of the government’s edits explicit and unambiguous.