On February 22, 2023, in their respective roles as Chair of the Attorney General’s Advisory Committee (“AGAC”) and Chair of the White Collar Fraud Subcommittee of the AGAC, United States Attorneys Damian Williams (Southern District of New York) and Breon Peace (Eastern District of New York), announced that, effective immediately, all US Attorneys’ Offices would be implementing the Department of Justice’s new voluntary self-disclosure policy. The new policy puts into practice the measures outlined in Deputy Attorney General Lisa Monaco’s September 15, 2022 memorandum entitled, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” described here.
The policy aims to provide transparency and predictability to parties who are contemplating voluntary self-disclosure of misconduct, as it standardizes the approach to be taken by all US Attorneys’ Offices when assessing how to define and credit voluntary self-disclosure.
Pursuant to the new policy, companies will be credited with voluntary self-disclosure if they:
- discover and report the known facts about employee or agent misconduct to a US Attorney’s Office before an imminent threat of disclosure or government investigation;
- cooperate fully in the investigation;
- remediate the criminal conduct, and;
- agree to pay forfeiture, disgorgement and restitution.
If these criteria are met, and there are no aggravating factors, the US Attorney’s Office will not seek a guilty plea, and may choose either not to impose any criminal penalty at all, or to impose a penalty no greater than 50% below the low end of the United States Sentencing Guidelines fine range. Nor will the US Attorney’s Office seek to impose an independent compliance monitor on the company if an adequate compliance program has been implemented.
There are, however, three categories of aggravating factors that may cause the US Attorney’s Office to seek a guilty plea even if the other voluntary disclosure requirements are met. These are: (1) misconduct that poses a grave threat to national security, public health, or the environment; (2) misconduct that is pervasive, or; (3) misconduct in which the current executive management of the company is involved. Even in the event that the US Attorney’s Office requires a guilty plea, companies may still receive other benefits under the voluntary self-disclosure policy – including reductions of as much as 75% off the low end of the fine range for criminal penalties.
With the new approach, the US Attorney’s Office undertakes to coordinate with other Department of Justice components that share enforcement authority over a company’s misconduct.