With New White Collar Enforcement Priorities Memo, DOJ Seeks to Provide More Pathways to Declinations and Non-Prosecution Agreements: Part Two

In Part One of this series, we discussed the May 12, 2025, U.S. Department of Justice Criminal Division’s new guidance memo on white-collar enforcement priorities in the Trump 2.0 Administration entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.”

In this new DOJ memo, and in an accompanying speech by Matthew R. Galeotti, the Trump Administration’s appointed Head of the Criminal Division, the DOJ announced its priorities and areas of focus for white collar enforcement.

In Part Two of this series, we address the DOJ’s changes made the same day to its Corporate Enforcement and Voluntary Disclosure Policy (“the CEP”), contained within the Justice Manual. The revised CEP provides additional benefits to companies that self-disclose and cooperate. In his May 12^th speech, Galeotti asserted that prior versions of the CEP were “unwieldy and hard to navigate” and noted that the DOJ seeks to be “as transparent as [it] can to companies and their counsel about what to expect under [DOJ’s] policies.” As part of this effort to increase transparency, the revised CEP includes a flowchart of potential outcomes should a company decide to make a voluntary self-disclosure as well as definitions of key terms such as “Voluntary Self-Disclosure,” “Full Cooperation,” “Timely and Appropriate Remediation” and “Providing Cooperation Credit.”

1. Increased Opportunities for Companies to Receive Declinations of Prosecution

The revised CEP provides that, in the absence of aggravating circumstances, a company will receive a declination if they voluntarily self-disclose misconduct to the DOJ, fully cooperate with the DOJ’s investigation, and timely and appropriately remediate. This is a change from the prior version of the CEP which provided only a presumption of a declination where a company takes these steps. And now, even if there are aggravating circumstances related to the nature and seriousness of the offense, prosecutors retain discretion to recommend a declination by weighing the severity of those circumstances and the company’s cooperation and remediation. Note that companies receiving declinations will be required to pay all disgorgement/forfeiture as well as restitution/victim compensation payments resulting from the misconduct at issue. The method for calculating such payments is not set forth in the CEP.  Additionally, all declinations under the CEP will be made public.

2. “Near Miss” Voluntary Self-Disclosures or Aggravating Factors Could Also Warrant a Non-Prosecution Agreement (NPA)

In the most significant policy change, the revised CEP includes a new “near miss” category providing for a Non-Prosecution Agreement (“NPA”) where a company fully cooperates and timely and appropriately remediates but is ineligible for a declination because the company did not timely disclose, the company had a preexisting obligation to disclose or the DOJ already knew about the conduct when the company disclosed. A company can also qualify for a NPA if it was ineligible for a declination on account of aggravating factors, but there were not particularly egregious or multiple aggravating factors. In these circumstances, the DOJ will agree to a NPA, allow a term length of fewer than three years, not require an independent compliance monitor, and provide a 75 percent reduction off the low end of the U.S. Sentencing Guidelines.

3. Additional Opportunities for Discretion Remain in Determining An Appropriate Resolution

Even if companies are not eligible for a declination or a NPA, prosecutors still retain discretion to determine an appropriate resolution related to form, term length, compliance obligations, and monetary penalties, with a company’s recidivism factoring into the appropriate resolution.

Takeaways

The revised CEP, as written, is more business-friendly and seeks to provide more predictable outcomes to federal criminal corporate investigations.  The changes move the needle away from requiring a guilty plea as part of a resolution and provide easier pathways to a corporate declination or a NPA.

These changes to the CEP intend to provide more certainty for companies if they self-disclose misconduct to the DOJ, fully cooperate with an investigation, and remediate the misconduct. Although these changes appear to offer more certainty to companies considering a voluntary disclosure, it remains to be seen how this new CEP will be applied going forward. Although terms such as “Full Cooperation” and “Timely and Appropriate Remediation” are defined, there will still be potential for disagreement as to whether a company has met those definitions, including providing all non-privileged facts relevant to the conduct at issue and timely and voluntarily preserving, collecting and disclosing relevant documents and information.

Finally, and notably, the CEP does not modify the controversial and short timelines set forth in the Department-wide Merger & Acquisition Policy (M&A) Policy outlined in Justice Manual 9-28.600 and 9-28.900, which applies to misconduct uncovered in the context of M&A pre- or post-acquisition due diligence.

We will be monitoring additional developments in this area as the Administration continues to implement policy changes. Feel free to contact any of the authors for more information or to discuss how these changes impact you or your company.