Guest Blogger – Kaleb Byars
On March 10, 2026, the DOJ issued its Department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy (the “Policy”). According to a press release issued the same day, the Policy supersedes all previously-existing component-specific self-disclosure policies (except those relating to antitrust). Among other things, the Policy is designed to promote voluntary self-disclosure of corporate criminal conduct and provide transparency on prosecutorial decision-making.
The recent announcement of the Policy is somewhat unsurprising. Individual components of the DOJ have independently adopted self-disclosure policies for quite some time. For example, the U.S. Attorney’s Office for the Southern District of New York adopted its own policy a few weeks ago. Moreover, the DOJ Criminal Division adopted a self-disclosure policy a few years ago. The Policy simply unifies the DOJ’s approach across all components and individual U.S. Attorney’s Offices.
Ultimately, the Policy provides a three-part framework to determine the resolution that the government will offer an organization. First, the DOJ will decline to prosecute an organization if: (1) it voluntarily self-discloses its misconduct to the DOJ; (2) it fully cooperates with the government’s investigation; (3) it “timely and appropriately” remediates its misconduct; and (4) no “aggravating circumstances” exist. The Policy’s Appendix B defines these requirements in further detail. Second, the DOJ will offer a non-prosecution agreement (“NPA”) to an organization that otherwise meets these requirements except that: (1) its self-reporting does not qualify as “voluntary self-disclosure” as defined; and/or (2) “aggravating factors . . . warrant a criminal resolution” instead of a declination. Third, for organizations that are not eligible for a declination or an NPA under the Policy, prosecutors retain their usual discretion to resolve the case in any manner.
So is the Policy a good thing or a bad thing? I’m not sure.
Organizations may view the Policy favorably because it at least provides a somewhat-predictable avenue to avoid formal prosecution and conviction. The Policy also increases transparency in corporate criminal cases where it applies. All declinations offered under the Policy will be made public, and the Policy suggests that prosecutors should “include in their corporate resolution agreements information sufficient to outline why a particular company received a particular amount of cooperation credit,” which is information that current corporate criminal resolutions often omit.
But the Policy contains ambiguities that may give organizations pause before self-reporting. For example, what are “aggravating circumstances?” The Policy briefly defines that term to relate to the seriousness of the misconduct or harm or the organization’s recidivism. However, prosecutors appear to have great discretion in defining “aggravating circumstances,” and how they define that term will determine the resolution the organization receives. The Policy also defines “voluntary self-disclosure” to require disclosure within “a reasonably prompt time after becoming aware of the misconduct,” but that phrase does not answer precisely when an organization must disclose its misconduct. In addition, as others and I have written with respect to DPAs, I am concerned that the Policy may increase the use of corporate criminal resolutions for which there is currently no judicial oversight.
In any event, whether a net positive or not, the Policy gives corporate criminals (and their attorneys) something to think about.
(KB)