
On January 17, 2023, Assistant Attorney General for the Criminal Division (“AAG”) Kenneth A. Polite, Jr. announced significant revisions to the U.S. Department of Justice, Criminal Division, corporate criminal enforcement policy (“CEP”).[1] The new CEP changes offer additional incentives to companies for voluntary self-disclosures, cooperation, and remediation. The new CEP reflects an increased emphasis on voluntary self-disclosure and cooperation, and also constitutes a formal name change to the “Corporate Enforcement and Voluntary Self-Disclosure Policy,” replacing the prior version of the CEP in the Justice Manual (JM 9-47.120). The revisions come in response to Deputy Attorney General Lisa O. Monaco’s request in September 2022 that all U.S. Department of Justice (“Department” or “DOJ”) components clarify the benefits of voluntary self-disclosure so that corporate decisionmakers can better understand the potential benefits and decide whether voluntary self-disclosure is in the company’s best interests. We expect that other Department components will issue similar guidance following the Criminal Division’s recent CEP updates.
Since launching its voluntary self-disclosure incentive program in 2016, the Department has repeatedly stressed that when a company discovers criminal misconduct “the clearest path for a company to avoid a guilty plea or an indictment is voluntary self-disclosure.”[2] However, the Department acknowledged the difficult choice facing companies considering voluntary self-disclosure of alleged misconduct, particularly when aggravating factors may prevent a company from obtaining a declination. In these instances, rational companies may decide that the potential benefits of self-disclosure do not outweigh the risks, and may instead elect not to disclose such misconduct. The revisions to the CEP attempt to address these concerns by rewarding companies that have implemented robust compliance programs and who have made “extraordinary” efforts to remediate and cooperate with the Department.