On February 22, 2023, the US Department of Justice announced a new voluntary self-disclosure policy for corporate criminal enforcement in US attorney’s offices nationwide. The policy offers concrete and meaningful incentives – including significant discounts on fines and not guilty plea resolutions – for corporations that meet the criteria for a voluntary self-disclosure of misconduct. One catch: The policy does not apply where a whistleblower informed the DOJ about the alleged misconduct. Though the policy makes clear that self-reporting will still be considered favorably even if the government was previously made aware of the alleged misconduct, it highlights the government’s increasing focus on timely self-disclosure – and, in turn, the increasing importance of a corporation’s response to internal whistleblower complaints. While the question of whether to self-report is highly fact-dependent, corporations should, at a minimum, take every whistleblower report seriously, move to investigate any potential misconduct swiftly, and, where the decision is made to self-report, do so promptly.
Whistleblowers and voluntary self-disclosure
In a recent American Bar Association Corporate Counsel Seminar session on whistleblower reports (held prior to the DOJ’s policy announcement), a panel of in-house and outside counsel discussed the many difficulties companies face in deciding whether and when to self-disclose potential wrongdoing. These decisions often implicate a variety of...
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