Just months after senior DOJ officials were warning repeat offenders about the consequences they face for corporate wrongdoing and following a years-long focus on individual accountability for white-collar crime, the DOJ took what some might consider a surprising turn. Last month, the DOJ revised its Corporate Enforcement Policy to encourage both recidivists and corporations in general to step forward and disclose their misdeeds. But with the threshold for making a deal, particularly for getting a declination, set ever higher, some might wonder whether self-reporting—and the consequences such an act triggers—ultimately will be worth the effort. It makes sense that with a specter of individual accountability looming or a potential guilty plea for corporate repeat offenders in the offing that only more innocuous misdeeds might be self-reported. With seemingly greater incentives in place, will corporations rush to self-disclose more serious offenses now? In this second part of our article series on the Revised Corporate Enforcement Policy, we take a closer look at how companies can qualify for a declination under the new policy, whether self-reporting is likely to yield an attractive return on investment for an offending corporation and whether nondisclosure might still be a viable option. Part one
focused on the overall changes to the Corporate Enforcement Policy, the shift in the DOJ’s approach to recidivists and the likely impact of the revisions on the volume of self-disclosures. See “How the Revised Monaco Memo Alters Deal Making and Strategy
” (Oct. 12, 2022).