by Lewis Zirogiannis, P.C. and Thomas F. Li

DOJ Criminal Division’s Revised Corporate Enforcement Policy Provides Clarity to White Collar Enforcement

Companies on the receiving end of Department of Justice (DOJ) investigations for alleged corporate crime now have clearer avenues to avoiding formal prosecution.  On May 12, 2025, the DOJ announced a revision to the Corporate Enforcement and Voluntary Disclosure Policy (CEP).[1]  The revisions clarify the DOJ criminal division’s (Criminal Division) approach to white-collar enforcement and provide a clearer path to declinations (i.e., a decision not to prosecute) for companies meeting certain conditions. 

The revisions to the CEP are aimed at reducing enforcement burdens on companies. Importantly, the revised CEP sets out new policies that are geared towards providing companies with clarity as to how they can obtain declinations or favorable resolutions.  This is consistent with the DOJ’s new guidance on white-collar enforcement priorities, also released on May 12, 2025, which stated that “[t]he Department’s first priority is to prosecute individuals” and that “[n]ot all corporate misconduct warrants federal criminal prosecution.”  

Previously, companies that self-disclosed, cooperated and remediated were presumed to receive a declination.  The revised policy now assures declinations to qualifying companies if the company (1) voluntarily self-discloses misconduct, (2) fully cooperates with the DOJ’s investigation, (3) timely and appropriately remediates and (4) has no aggravating circumstances. 

Voluntary Self-Disclosure:  The revised CEP lists the requirements of voluntary self-disclosure, requiring (1) the self-reporting of the misconduct, (2) that the conduct was previously unknown to the DOJ, (3) no pre-existing obligation to disclose, (4) that disclosure was prior to any imminent threat that the DOJ would learn of the misconduct and (5) disclosure was reasonably prompt.  Even without satisfying all requirements of voluntary self-disclosure under the revised CEP, companies may receive a Non-Prosecution Agreement (NPA) if the company (1) self-reported the misconduct to the DOJ (but did not satisfy the other requirements of self-disclosure), (2) fully cooperated with the investigation and (3) timely and appropriately remediated, unless there are severe aggravating circumstances.  The revised CEP refers to such situation as a “near miss” of checking all requirements of voluntary self-disclosure.  Under such circumstances the Criminal Division (a) “shall” provide an NPA (absent egregious or multiple aggravating circumstances) and (b) allow a term length of the NPA of fewer than years.[2]

Full Cooperation: A company fully cooperates when it (1) discloses all relevant, non-privileged facts and evidence about individuals involved in the misconduct, (2) discloses all relevant, non-privileged facts gathered during the company’s internal investigation, if one is conducted, (3) proactively cooperates, (4) timely and voluntarily preserves, collects, and discloses relevant documents, (5) de-conflicts witness interviews and investigative steps that the company intends to take as part of its internal investigation to prevent the company’s investigation from conflicting, or interfering, with the Criminal Division’s investigation and (6) makes company officers and employees available for interviews by the Criminal Division, subject to the individuals’ Fifth Amendment rights.[3]

Timely and Appropriate Remediation:  The requirements of “timely and appropriate remediation” include, among other things, that the company has (1) demonstrated a thorough analysis of the causes of the underlying conduct, (2) implemented an effective compliance and ethics program, (3) appropriately disciplined employees, (4) retained business records and prohibited the improper destruction of those records and (5) taken any additional steps that demonstrate recognition of the seriousness of the misconduct, including the implementation of measures to reduce the risk of repetition of such misconduct.[4]

Lack of Aggravating Circumstances: As for aggravating circumstances, although the revised CEP does not define those circumstances, it refers to the egregiousness or pervasiveness of the misconduct within the company, severity of harm and whether similar misconduct has occurred within the last 5 years as relevant factors in considering whether the misconduct was aggravated. Companies with aggravating circumstances may still receive declinations based on the severity of the aggravating factors, level of cooperation and degree of remediation.    

Indeed, even companies that are hesitant about self-disclosure due to the presence of aggravating circumstances, disentitling them to declinations or NPAs, may take advantage of potential favorable resolutions under the revised CEP.  Where the company is neither entitled to declinations nor NPAs, the revised CEP maintains prosecutorial discretion to determine the appropriate term length, compliance obligations, and monetary penalty, and encourages reductions in any fines to no more than 50% of the applicable fine under the United States Sentencing Guidelines.

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The revised CEP therefore presents a unique opportunity for companies engaged in previous misconduct to consider voluntary self-disclosure, cooperation and appropriate remediation as a path towards declination, NPAs or other favorable terms of resolution.

[1] On May 12, 2025, the DOJ also released a Memorandum to All Criminal Division Personnel entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collars Crime” and, separately, a memorandum entitled “Memorandum on Selection of Monitors in Criminal Division Matters.”

[2] CEP, Appendix B.

[3] Id.

[4] Id.