In recent years, the U.S. Department of Justice (DOJ)—including several leading U.S. Attorneys' Offices, along with other U.S. enforcement authorities—has taken steps to incentivize disclosure of potential wrongdoing by companies and individuals in exchange for declinations, non-prosecution agreements or reduced financial penalties. Today, in light of new incentives for individual whistleblowers, and the evolving expectations of enforcement officials, the stakes are high for in-house counsel and compliance officers to quickly assess the potential benefits and risks of making a voluntary self-disclosure. More broadly, these developments also underscore the importance of investing in corporate compliance programs that are fully equipped to prevent, detect, investigate and remediate wrongdoing.

The DOJ

The DOJ has repeatedly stressed its commitment to incentivizing self-disclosure and corporate cooperation. For instance, in September 2022, Deputy Attorney General Lisa Monaco directed each prosecutorial DOJ component to review, or in some cases to draft and implement, its policies on corporate voluntary self-disclosures. This policy reflects the DOJ's view that, absent aggravating factors such as pervasive misconduct or criminal recidivism, it will not seek a guilty plea where a company has voluntarily self-disclosed, cooperated and remediated the misconduct. The DOJ places significant weight on voluntary self-disclosure as "a sign that the company has developed a compliance program and has fostered a culture to detect misconduct and bring it forward."