Sarah E. Walters and Edward B. Diskant are Partners and Jennifer Levengood is an Associate at McDermott Will & Emery. This post is based on an MWE memorandum by Ms. Walters, Mr, Diskant, Ms. Levengood, Justin P. Murphy, and Julian L. André.
On February 24, 2023, the US Department of Justice (DOJ) rolled out a corporate self-disclosure policy (the Policy) to be applied by all 93 US Attorneys’ Offices throughout the country. The details of the Policy—which formalizes and defines what will be required for companies seeking credit for a “voluntary self-disclosure”—have been drawn from existing policies within other components of DOJ, including, notably, the Foreign Corrupt Practices Act Unit and Antitrust Division. The new Policy ensures for the first time that uniform standards will be applied at the local level by all US Attorneys’ Offices nationwide.
In short, the Policy heavily encourages timely self-disclosure and cooperation by promising the prospect of more lenient resolutions (including declinations) and reduced penalties for companies that promptly self-report misconduct. Consistent with prior recent statements from DOJ leadership, the Policy puts particular emphasis on the timeliness of self-reporting and provides details on how US Attorneys’ Offices will evaluate certain potentially aggravating factors, including the involvement of senior leadership in the alleged misconduct and the company’s history of regulatory, civil or criminal misconduct. (See, e.g., Remarks from Assistant Attorney General Kenneth A. Polite, Jr., on Revisions to the Criminal Division’s Corporate Enforcement Policy, Jan. 17, 2023; Memorandum from Deputy Attorney General Lisa O. Monaco, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” Sept. 15, 2022; Memorandum from Deputy Attorney General Lisa O. Monaco, “Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies,” Oct. 28, 2021.) While certain aspects of the Policy may thus be familiar, it nonetheless provides important guidance to those engaging with local US Attorneys’ Offices on corporate investigations and prosecutions, while setting consistent standards for engaging with federal prosecutors nationwide.