This Article explores the possible remedies available to a corporate defendant when a federal prosecutor violates an existing nonprosecution or immunity agreement. The United States Court of Appeals for the Third Circuit recently considered this issue in Stolt-Nielsen, S.A. v. United States, ruling that a company could not obtain an injunction preventing its indictment based on a previously negotiated immunity agreement. This decision accorded with the prior analysis of other courts in that it considered the question of remedy from the perspective of constitutional rights, weighing a defendant's due process rights against the executive's prosecutorial discretion. A better approach would be to analyze these agreements as contracts and consider the responsibilities and rights of each party to the agreement on the basis of traditional contract-law principles. With this orientation, it is clear that, contrary to the findings of the Third Circuit, companies have strong legal arguments in favor of a preemptive injunction, and there is no separation-of-powers bar to a court granting such relief.
