Unpacking DOJ Criminal Division’s New Pilot Program on Voluntary Self-Disclosure for Individuals  

The DOJ’s Criminal Division recently initiated a new self-disclosure pilot program (“Pilot Program”). As Deputy Attorney General Lisa Monaco has explained, under the Pilot Program:

“[I]n exchange for self-disclosing, fully cooperating with authorities, and paying any applicable victim compensation, restitution, forfeiture, or disgorgement, including returning any ill-gotten gains, the Criminal Division will enter into a non-prosecution agreement (NPA) where certain specified conditions are met. This Pilot Program provides transparency regarding the circumstances in which Criminal Division prosecutors will offer mandatory NPAs to incentivize individuals (and their counsel) to provide original and actionable information.”

This Pilot is the latest in an ongoing series of new and updated Department of Justice (“DOJ”) policies, including the Compensation Incentives and Clawbacks Pilot Program, which encourage individual cooperation with the DOJ Criminal Division.

Key Takeaways

• The Pilot Program continues the DOJ’s focus on individual accountability: “companies can only act through individuals.” Corporate Compliance teams should continue to leverage the DOJ’s focus in their internal compliance communications to strengthen the importance of individual actions.
• By holding individuals accountable, and with the DOJ “building an enforcement framework that promotes good corporate citizenship,” it is expected that companies will invest in a culture of compliance.
• In exchange for full cooperation with the DOJ, individuals facing criminal liability may be eligible to enter into a non-prosecution agreement (“NPA”) with the Criminal Division if all the conditions established by the DOJ are met by the individual.  Understanding the conditions established by the DOJ should be the key area of focus.
• With the emergence of Artificial Intelligence (“AI”), Deputy AG Monaco made clear that “Fraud using AI is still fraud. Price fixing using AI is still price fixing. And manipulating markets using AI is still market manipulation.” There continues to be focus on the bias within AI so companies should look to perform AI Bias Audits as part of their compliance programs.
• The DOJ is increasing its focus on, and in turn “demanding stiffer penalties” for, corporate recidivists.  Examples of this increased focus include Telefonaktiebolaget LM Ericsson and Teva Pharmaceuticals. Sharing summaries of these matters as appropriate within your companies can help with strengthening compliance.