Key Takeaways

• The DOJ sets the nationwide standard for how U.S Attorneys’ Offices will determine whether a company has made a voluntary self-disclosure.
• The new policy incentivizes companies to maintain effective compliance programs capable of identifying misconduct expeditiously, voluntarily disclose and remediate misconduct, and cooperate fully with the government in corporate criminal investigations.
• Companies that meet these standards may avoid criminal convictions, associated penalties and the appointment of compliance monitors.

Overview

Last week, the Department of Justice (DOJ or the Department) announced the immediate implementation of a new Voluntary Self-Disclosure Policy (the Policy), setting a nationwide standard for how U.S Attorneys’ Offices will determine whether a company has made a voluntary self-disclosure and outlining the specific, tangible benefits to companies for self-disclosing, fully cooperating and remediating their own criminal conduct.

According to U.S. Attorney Breon Peace, under this policy, “no matter where in the country a company operates, it can rely on receiving the same treatment and benefits for voluntarily self-disclosing criminal conduct to a U.S. Attorney’s Office.”

The announcement of this new policy follows the mandate contained in Deputy Attorney General Lisa Monaco’s September 15, 2022 memorandum, which instructed each component of the DOJ that prosecutes corporate crime to draft and publicly share formal written policies incentivizing voluntary corporate self-disclosure and Assistant Attorney General Kenneth Polite’s recently announced changes to the DOJ’s corporate enforcement policy.

Standards of Voluntary Self-Disclosure

To qualify as a “voluntary self-disclosure” under the new Policy, the DOJ will require that a company’s self-disclosure meets each of the following standards:

1. Disclosures must, in fact, be voluntary. The Policy excludes disclosures made “pursuant to regulation, contract, or a prior Department resolution (e.g., non-prosecution agreement or deferred prosecution agreement).”
2. Disclosures must be prompt. The Policy requires that disclosures be made reasonably promptly after a company becomes aware of misconduct and prior to the misconduct being publicly disclosed or otherwise known to the government.
3. Disclosures must be comprehensive. The Policy requires that disclosures must include all relevant facts concerning the misconduct that are known to the company at the time of the disclosure. The Department further expects that companies will preserve, collect and produce relevant documents and provide timely factual updates to the DOJ as their internal investigation progresses.

In addition, to receive full credit, the DOJ requires that companies remediate their criminal conduct. Under the Policy, appropriate remediation must include a company agreeing to pay all disgorgement, forfeiture and restitution resulting from the misconduct at issue.

Benefits of Voluntary Self-Disclosure

For companies that meet these standards, fully cooperate and remediate their criminal conduct, the benefits can be substantial. Except in cases that involve aggravating factors such as threats to national security, public health or the environment, where there is deeply pervasive wrongdoing throughout the company, or where the misconduct was by current executive management of the company, companies will not be required to plead guilty to any criminal offense and may avoid, or significantly reduce, other associated penalties.

However, even with the presence of an aggravating factor, a criminal plea may not be necessary if the company otherwise meets the new standards. The Department will assess the relevant facts and circumstances of the aggravating factor to determine the appropriate resolution. If a guilty plea is ultimately required, a company still potentially will be eligible to receive the other benefits under the Policy, including a recommended reduction of at least 50 percent and up to 75 percent of the low end of the range of fines under the U.S. Sentencing Guidelines.

Finally, for a cooperating company that voluntarily self-discloses relevant conduct and timely and appropriately remediates its criminal conduct, the DOJ will not require an independent compliance monitor if the company has implemented and tested an effective compliance program at the time it reaches a resolution with the Department. 

Conclusion

Given the Department’s continued focus on corporate criminal enforcement and the significant benefits potentially available under this new policy, companies would be well advised to review existing compliance programs and internal accounting controls to ensure that current procedures are sufficient to effectively detect and prevent misconduct. Companies considering self-disclosure will need to carefully consider how best to cooperate with any government investigation and have an effective plan to remediate any potential misconduct. It is critical that companies consult with outside counsel as to whether to self-report as soon as any potential misconduct is detected, because time is of the essence.

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