On March 10, 2026, the Department of Justice (DOJ) published a department-wide corporate enforcement policy with the stated goal of promoting “uniformity, predictability, and fairness” in the pursuit of white collar cases.
The Corporate Enforcement and Voluntary Self-Disclosure Policy and its appendices describe how the DOJ can decline to prosecute based on a corporation’s voluntary self-disclosure. (Of note, the policy does not apply to antitrust violations promulgated in 15 U.S.C. §§ 1-38.) Under the policy, the DOJ can decline to prosecute a corporation’s misconduct when these four things apply:
1. The company voluntarily self-discloses “to an appropriate Department criminal component.”
2. The company fully cooperates with the investigation.
3. The company timely and appropriately remediates the misconduct.
4. There are no aggravating circumstances related to the offense, the severity of the harm caused by the misconduct, or corporate recidivism.
Even with aggravating circumstances, DOJ prosecutors have discretion to decline prosecution while weighing the severity of those circumstances. Under the policy, an eligible corporation will pay forfeiture and restitution.
The policy leaves ample discretion for prosecutors to determine a fair resolution, even if a company is otherwise ineligible for declination of prosecution. The discretion that remains still allows prosecutors to reward “well-intentioned businesses” for self-disclosing wrongdoing. If a company’s self-reporting fails to satisfy the policy’s factors for a declination, a company may still be eligible for resolution under a second path, called the “near miss” resolution. Under this path, the DOJ will provide a non-prosecution agreement, term length of fewer than three years, will not require an independent compliance monitor, and will provide a 50-75% reduction of the low end of the U.S. Sentencing Guidelines' fine range.
A third path is reserved for cases that do not satisfy the declination requirements of the policy and do not qualify as a “near miss.” In this case, prosecutors “maintain discretion” in determining the appropriate resolution. However, a company will not receive a reduction of more than 50% of the fine under the Sentencing Guidelines. Prosecutors still have discretion on the percentage reduction, taking into account the circumstances of the matter, including company recidivism.
The policy aims to encourage businesses to self-disclose effectively and in a timely manner. Appendix B sets forth that a voluntary disclosure is one where the misconduct was not previously known to the DOJ and was disclosed promptly after discovery (if possible, prior to completion of an internal investigation). The policy will likely encourage companies to collaborate with counsel on thorough and efficient internal investigations, and, if eligible under the policy, will streamline the prosecution of white collar crime to focus on the specific bad actors at issue.
While the effects of this nascent policy remain to be seen, a downward trend in white collar prosecutions may be forthcoming if corporations comply with its terms. Even ineligible but well-meaning companies may receive favorable prosecutorial discretion for “near miss” cases.
A key consideration is what constitutes “an appropriate Department criminal component” to achieve self-disclosure under the policy. In 2023, the United States Attorneys’ Offices published a voluntary self-disclosure policy that stated disclosure was only deemed a voluntary self-disclosure when it was made directly to a United States Attorney’s Office. By contrast, the recent DOJ-wide policy does not define “appropriate criminal component” but does provide that disclosure only to a federal regulatory agency or state or local government will not suffice as voluntary self-disclosure. It remains to be seen whether certain jurisdictions will look more favorably on disclosure to what is commonly called "Main Justice," a United States Attorney’s Office, or to federal law enforcement agencies such as the FBI. Based on the new policy, the FBI or a United States Attorney’s Office is likely a satisfactory component of the DOJ through which to self-disclose.
In the wake of this new policy, businesses should hone their corporate risk and compliance controls, with specific focus on preventing fraud, bribery, and money laundering. Such compliance controls will include employee training to recognize patterns of behavior indicative of misconduct in these areas. Companies should also timely conduct a thorough internal investigation. Upon advice of counsel, the outcome of the investigation will determine whether the discovered information warrants voluntary self-disclosure. Finally, companies should create an internal process for timely self-disclosure upon discovery of potential misconduct to be eligible under the policy.
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