DOJ Doubles Down And Commits To Department‑Wide Corporate Enforcement Policy

Key Takeaways

• The Department of Justice (DOJ or the Department) has adopted its first‑ever Department‑wide Corporate Enforcement and Voluntary Self‑Disclosure Policy (CEP), applicable to nearly all corporate criminal matters handled by DOJ.
• Companies that voluntarily self‑disclose misconduct, fully cooperate, and timely and appropriately remediate can expect a declination of prosecution, absent specified aggravating circumstances.
• Even where a declination is unavailable, the policy establishes defined benefits – including non‑prosecution agreements, shorter resolution terms, no monitors and substantial fine reductions – for companies that meaningfully self‑report and cooperate.
• In the press release accompanying the new policy, DOJ leadership emphasized that while companies may earn significant benefits for coming forward, the Department will continue to prioritize individual accountability and will pursue appropriate resolutions where companies fail to self‑report.

Background

On March 10, DOJ announced the release of its first‑ever Department‑wide Corporate Enforcement Policy for criminal cases. According to DOJ, the policy draws on decades of corporate enforcement experience and reflects an effort to harmonize how prosecutors across the Department evaluate corporate self‑disclosure, cooperation and remediation when making charging and resolution decisions.

In the press release announcing the new policy, Deputy Attorney General Todd Blanche described the CEP as part of the Department’s commitment to transparency and fairness, explaining that the policy is intended to reward companies that “come forward and do the right thing when misconduct occurs,” while ensuring that individual wrongdoers are held accountable.

Scope and Applicability

The CEP applies on a Department‑wide basis to corporate criminal matters handled by DOJ, with the exception of violations of 15 U.S.C. §§ 1–38, which will remain under the Antitrust Division’s separate leniency program. The adoption of a uniform, Department‑wide policy further eliminates the uncertainty companies may have faced in deciding where best to self‑disclose, as the CEP makes clear that, while companies must disclose to the appropriate DOJ component, a good‑faith disclosure to any DOJ component will receive credit regardless of which component ultimately prosecutes the case.

According to the press release announcing the new CEP, this policy supersedes “all component-specific or U.S. Attorney’s Office-specific corporate enforcement policies currently in effect,” which would seem to include the corporate self-disclosure policy, announced by the U.S. Attorney’s Office for the Southern District of New York just last month, as well as the Criminal Division CEP issued in May 2025.

Underscoring the Department-wide significance of the new policy, all resolutions under the CEP require approval by senior DOJ leadership, including the relevant Assistant Attorney General or U.S. Attorney, in coordination with the Office of the Deputy Attorney General.

Key Differences from the Prior Criminal Division CEP

The new CEP largely mirrors the overall structure of the now superseded May 2025 Criminal Division CEP, but it includes several significant differences.

• Penalty Reduction: Under the Criminal Division CEP, companies facing aggravating circumstances that had nevertheless self-reported, cooperated and remediated were entitled to a 75% reduction off the low end of the U.S. Sentencing Guidelines (U.S.S.G.) fine range. The new CEP affords prosecutors greater discretion by providing that such companies may receive a reduction of “at least 50% but not more than 75%” off the low end of the U.S.S.G. fine range.
• Expanded Criminal History Window: The prior Criminal Division CEP included as an aggravating factor any “criminal adjudication or resolution within the last five years based on similar misconduct by the entity engaged in the current misconduct.” The new CEP removes the five-year limitation when evaluating recidivism and directs prosecutors to consider any “criminal adjudication or resolution either within the last five years or otherwise based on similar misconduct by the entity engaged in the current misconduct.” As a result, recidivism determinations under the updated policy may now reach significantly further back in a company’s history.
• Whistleblower Reports: Underscoring the Department’s focus on prompt disclosure, the new CEP tightens the rules for companies that receive internal whistleblower reports. The prior policy provided that companies that self-reported within 120 days of receiving a whistleblower complaint would qualify for a declination. The new policy now requires disclosure “as soon as reasonably practicable but no later than 120 days after receiving the whistleblower’s internal report.” Now, a disclosure made within 120 days of a whistleblower report could still be deemed untimely if prosecutors conclude that earlier disclosure was reasonably practicable under the circumstances.
• Financial Hardship: Under the prior Criminal Division CEP, a company asserting that its financial condition impaired its ability to cooperate would “bear the burden to provide factual support for such an assertion.” The new CEP removes any specific reference to financial hardship but states that “[t]he Department will take into consideration the size, sophistication, and financial condition of the cooperating company when assessing the scope, quantity, quality, impact, and timing of cooperation.”

Early Voluntary Self‑Disclosure as the Cornerstone of the CEP

The new CEP places particular emphasis on early voluntary self‑disclosure, making clear that timing, not investigative completeness, is often the decisive factor in whether a company qualifies for the policy’s most significant benefits. The policy defines voluntary self‑disclosure as a good faith report of misconduct previously unknown to the Department, made without a preexisting obligation to disclose and before an imminent threat of government investigation. Importantly, DOJ expressly encourages companies to disclose even before completing an internal investigation, placing the burden squarely on the company to demonstrate that disclosure was reasonably prompt once potential misconduct was identified. Under this policy, delay – especially where the delay could be seen as strategic or self‑protective – can undermine eligibility regardless of the eventual quality of cooperation or remediation.

Once a company crosses the disclosure threshold, the CEP sets out expansive expectations for full cooperation and timely remediation, including proactive disclosure of all non‑privileged facts, identification of all individuals involved regardless of seniority, preservation and production of documents across jurisdictions, and facilitation of witness interviews subject to individual rights. Remediation requires more than corrective measures tied to the immediate conduct: DOJ expects companies to demonstrate a clear understanding of root causes, implement meaningful enhancements to compliance and ethics programs, impose appropriate discipline, and maintain effective controls over document retention and communications platforms, including ephemeral messaging applications.

Declinations for Cooperating Companies

Under the new CEP, companies will receive a declination of prosecution if:

1. The company voluntarily self‑discloses misconduct.
2. The company fully cooperates with the Department’s investigation.
3. The company timely and appropriately remediates the misconduct.
4. No aggravating circumstances are present, such as particularly serious or pervasive misconduct, substantial harm, or corporate recidivism based on similar conduct.

However, even where aggravating circumstances exist, prosecutors have discretion to recommend a declination based on the severity of the circumstances in light of the company’s disclosure, cooperation and remediation.

While companies receiving declinations are not required to pay an additional monetary penalty, they must still pay all applicable disgorgement, forfeiture and restitution. Further, all CEP declinations will be made public.

Non-Prosecution Agreements for “Near-Miss” Cooperation

Even companies that fall short of complying with all requirements of the CEP may be eligible for a non-prosecution agreement (NPA) under the new policy. Companies that cooperate in good faith but are ineligible for a declination because (1) the cooperation failed to meet the definition of “voluntary self-disclosure” or (2) there are aggravating factors that warrant a criminal resolution may receive:

1. An NPA rather than a conviction
2. Compliance reporting term of no more than three years
3. No requirement for an independent monitor
4. A 50% to 75% reduction off the low end of the applicable U.S.S.G. fine range.

The Consequences of Silence

While highlighting incentives for cooperation, Deputy Attorney General Blanche made clear that companies choosing not to self‑disclose do so at their own risk. As he explained, DOJ will reward “well‑intentioned businesses” that self‑report, cooperate and remediate, but the Department “will not hesitate to seek appropriate resolutions against companies and individuals alike” when companies fail to come forward. The CEP underscores that self‑reporting is not a neutral business decision, but a core consideration that can materially influence DOJ charging and resolution decisions.

Practical Considerations for Companies and Executives

For companies and executives, the CEP underscores a critical strategic reality: The window for earning maximum credit opens quickly and can close just as quickly. Companies that wait to self‑disclose until an internal investigation is substantially complete risk forfeiting declination eligibility, even if the underlying misconduct is ultimately addressed thoroughly. As a result, organizations should ensure that escalation protocols empower legal and compliance leadership to assess potential criminal exposure and make disclosure decisions early, often on incomplete information.

At the same time, the CEP reinforces DOJ’s continued focus on individual accountability. Corporate resolutions under the policy provide no protection for officers, directors or employees, and DOJ will scrutinize both affirmative actions and failures to act once misconduct is identified. As a result, officers and directors who become aware of potential misconduct – or whose own conduct may be implicated – should recognize that their personal interests may diverge from those of the organization at an early stage. This creates a powerful incentive for individuals to seek independent counsel promptly and consider seeking the protection of a traditional cooperation agreement by self-reporting before their employer can do so.

The BakerHostetler White Collar, Investigations and Securities Enforcement and Litigation team is composed of dozens of experienced individuals, including attorneys who have served in the DOJ and at the Securities and Exchange Commission (SEC). Our attorneys include three former U.S. attorneys, former assistant U.S. attorneys and unit chiefs, and partners who have served in the SEC’s Division of Enforcement and the SEC’s Office of the General Counsel. Our team has extensive experience in defending regulatory investigations and litigation and in providing compliance counseling. Please feel free to contact any of our experienced professionals if you have questions about this alert.

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