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White Collar: Government Litigation and Investigations Update

Invigorating the Corporate Criminal Enforcement Program: U.S. Department of Justice Seeks to Entice Companies to Self-Report

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Earlier this month, the Criminal Division of the U.S. Department of Justice (DOJ or the Department) released a revised Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) that offers significant incentives for companies to self-disclose corporate misconduct, cooperate with DOJ, and remediate. Some of the most notable changes include (1) the possibility for companies to obtain a declination even in the presence of aggravating circumstances, (2) the ability for a recidivist company to obtain cooperation credit, and (3) increased reductions on fines for companies that either self-disclosed, or cooperated extensively with the investigation and fully remediated the misconduct but failed to self-disclose.

These revisions build on — and in some instances revise — those announced by Deputy Attorney General Lisa Monaco (DAG Monaco) in September 2022 and are the product of extensive, coordinated review within the Department in response to a call from DAG Monaco in October 2021 for the Department to evaluate and recommend further guidance, revisions, and reforms to its approach to corporate criminal enforcement. DAG Monaco announced in October 2021 that she had established the Corporate Crime Advisory Group, made up of representatives from throughout the Department involved in corporate criminal enforcement, to review issues such as how DOJ should measure a company’s cooperation, monitorship selection, and other topics and to recommend changes to “further invigorate the department’s efforts to combat corporate crime.”

In this Update, we explain the new CEP, highlight the changes from the previous version, and offer our thoughts on whether the new CEP is likely to help “invigorate” DOJ’s efforts to combat corporate crime. We also draw a line back to DAG Monaco’s announcements last fall to provide a more comprehensive read of this new policy and outline any remaining gray areas in the Department’s corporate enforcement guidelines.

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Associate Kamila Rivas contributed to this Sidley Update.

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