In a closely watched speech at Georgetown University Law Center, Assistant Attorney General Kenneth Polite Jr. announced the revised policy.1 The revised CEP offers new and concrete incentives to companies to promote immediate self-disclosure, meaningful cooperation, and timely remediation. The revisions fall into three main categories, as set forth below.
New pathway for companies to obtain declination when aggravating circumstances are present
In the past, if a company voluntarily self-disclosed, cooperated, and appropriately remediated, there was presumption that an investigation will be resolved through declination of criminal prosecution, absent certain aggravating circumstances. Such aggravating circumstances include (among others) involvement by executive management in the misconduct, a significant profit to the company from the misconduct, pervasiveness of the misconduct within the company, or criminal recidivism. As the Assistant AG alluded to in his remarks, this approach likely discouraged some companies faced with serious misconduct from self-disclosing, believing the risks outweighed the potential benefit.
Under the revised CEP, even companies involved in misconduct with aggravating circumstances may obtain declinations and reduced financial penalties. In order to be eligible for a declination in these circumstances, a company must satisfy three factors:
- The voluntary self-disclosure was made immediately upon the company becoming aware of the allegation of misconduct;
- At the time of the misconduct and the disclosure, the company had an effective compliance program and system of internal accounting controls that enabled the identification of the misconduct and led to the company’s voluntary self-disclosure; and
- The company provided extraordinary cooperation with the Department’s investigation and undertook extraordinary remediation.
Credit for voluntary self-disclosure, full cooperation, and timely and appropriate remediation where criminal resolution still warranted
Additionally, in cases where a criminal resolution is still warranted, a company that self-discloses can now receive up to a 75 percent reduction off the low end of the applicable Sentencing Guidelines (up from a maximum of 50 percent). And absent particularly egregious circumstances and an ineffective compliance program, a corporate guilty plea and corporate monitorship will not be required.
Limited credit for full cooperation and timely and appropriate remediation without self-disclosure
Lastly, for companies that do not voluntarily self-disclose but still cooperate and remediate, prosecutors can recommend up to a 50 percent reduction off of the Sentencing Guidelines fine range (up from a maximum of 25 percent). In making this determination, prosecutors will have discretion to appropriately credit “extraordinary” cooperation and remediation. The Assistant AG underscored that “every company starts at zero” and must earn cooperation credit.
To earn a declination in the face of aggravating circumstances, corporations must take extraordinary measures before, during, and after an investigation. So what distinguishes extraordinary cooperation from full cooperation?
According to the Assistant AG, in assessing the quality of collaboration, the DOJ will consider factors such as the immediacy, consistency, degree, and impact of the assistance. He added that “differences between ‘full’ and ‘extraordinary’ cooperation are perhaps more in degree than kind.” In other words, corporations must “go above and beyond” full cooperation to receive credit for extraordinary cooperation. Still, the Assistant AG recognized that each case presents unique facts and circumstances, and companies must determine how best they can cooperate in a given case.
What does this mean for companies?
The Assistant AG’s speech highlights the DOJ’s commitment to strengthening corporate criminal enforcement – and, at the same time, its willingness to use policy adjustments to reach its institutional objectives. Notably, the number of CEP declinations remains relatively small: in 2022, there were only two Corporate Enforcement Policy declinations, and none in 2021.
Overall, the revised CEP demonstrates that DOJ is seeking to reward companies that take compliance seriously. Questions remain as to how prosecutors will interpret the policy’s requirements of “immediate” disclosure and “extraordinary” cooperation and remediation. Moving forward, companies must have robust compliance systems in place both to detect wrongdoing in the first instance, while also being prepared to move swiftly – with the guidance of counsel – in the event a compliance issue requires an immediate evaluation for potential self-disclosure.
Authored by Kristy Greenberg, Shelita Stewart, Matthew Sullivan, and Rachel Stuckey.