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On February 22, 2023, the Department of Justice announced a new nationwide corporate voluntary disclosure policy promising significant benefits and leniency for companies that voluntarily disclose potential criminal wrongdoing before the government finds out or is about to find out about it. The new policy follows up on Deputy Attorney General Lisa Monaco’s September 15, 2022 memorandum, in which she directed “each Department of Justice component that prosecutes corporate crime to review its policies on corporate voluntary self-disclosure, and if the component lacks a formal, written policy to incentivize such self-disclosure, it must draft and publicly share such a policy.” The new DOJ policy instead adopts a nationwide policy applicable to all United States Attorney’s Offices (footnote 4 and the accompanying text in the February 22 DOJ policy memorandum explains that, because various components at DOJ headquarters have their own voluntary disclosure policies, there will have to be coordination in cases handled jointly by a U.S. Attorney’s Office and such a main Justice component).
Although it remains to be seen how the new DOJ policy will apply in practice, and there are various exceptions and caveats to give prosecutors flexibility, the core provisions of the new policy are as follows:
Companies that are aware or become aware of wrongdoing should consider the new DOJ policy in connection with decisions about whether and when to disclose potential misconduct to the DOJ. In addition, time will tell whether the new policy’s promise that the DOJ will forego seeking a criminal guilty plea in cases where a company voluntary discloses means that the DOJ will more likely seek a guilty plea where voluntary disclosure does not occur.