04/17/2024 | Press release | Distributed by Public on 04/17/2024 14:49
Under the newly announced pilot program, individuals who fully cooperate and voluntarily provide the Criminal Division with information on certain types of corporate and white-collar offenses may receive an NPA in exchange for their cooperation. The policy is intended to "provide[] 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 announcement is the latest in an ongoing series of DOJ policy updates geared toward boosting cooperation with the Department. Most recently, Monaco highlighted the ongoing success of the Department's corporate Voluntary Self-Disclosure Policy, which allows companies to avoid guilty pleas and fines when they self-report wrongdoing and cooperate, and previewed the eventual implementation of a separate monetarily incentivized whistleblower program in her remarks at the ABA White Collar Crime Institute. Additionally, over the past three months, both the U.S. Attorneys' Offices for SDNY and NDCA have adopted their own whistleblower pilot programs, whereby cooperating individuals may receive an NPA in exchange for their information. The new pilot program, which applies to all Criminal Division investigations of specified corporate offenses and disclosures made on or after April 15, 2024, falls in line with the Department's continued emphasis on cooperation over the past year.
While the pilot program is more expansive than similar programs in place at the district level, not all disclosures will be rewarded with an NPA. At the outset, the information being offered must relate to one of the enumerated categories of qualifying offenses, specifically (1) money laundering and related offenses; (2) violations related to the integrity of financial markets; (3) foreign bribery and corruption; (4) health care fraud and illegal kickbacks; (5) fraud related to federally funded contracting; and (6) domestic bribery. Information-related offenses handled by other components of the DOJ, such as criminal tax violations and sanctions violations, will not qualify for the pilot program without the coordination and approval of the component with charging authority over those offenses.
Eligibility is also limited based on the cooperator's background and role in the offense. CEOs, CFOs, foreign and domestic officials, and employees of any domestic law enforcement agency cannot receive the benefits of the pilot program. Additionally, leaders and organizers of the reported misconduct will not receive credit for their disclosure under this pilot program. Certain prior criminal offenses, including any prior felony conviction, any prior conviction involving fraud or dishonesty, and crimes of violence, will also disqualify individuals from the program.
Beyond the threshold requirements, the policy sets forth standardized criteria for cooperation, many of which mirror both the existing SDNY and NDCA policy requirements as well as the requirements for a traditional cooperation agreement:
If all of the above criteria are met, the individual will receive an NPA. However, even when the requirements are not met in full, prosecutors may offer NPAs to individuals in appropriate circumstances, pursuant to existing cooperation policies.
While there are many similarities between the new pilot program and the existing SDNY and NDCA policies, they differ in some important ways. The Criminal Division program applies to a broader range of offenses than the district level programs, including federal bribery, foreign bribery, violations of the Federal Corrupt Practices Act, health care fraud, and federal contracting fraud. Additionally, the SDNY policy excludes anyone who "is or is expected to become of major public interest" from participation in its program, whereas the Criminal Division program only excludes certain C-level executives, scheme leaders or organizers, and public officials. Finally, unlike the SDNY and NDCA policies, the Criminal Division program explicitly requires the forfeiture of criminal proceeds and the payment of restitution or victim compensation.
The DOJ's focus on corporate and public corruption offenses and self-disclosure and cooperation shows no sign of slowing, and we can expect further guidance from the DOJ as it collects and analyzes data about relevant disclosures during the pilot program to determine whether further modifications are needed. Beyond encouraging the disclosure of actionable information, the pilot program is also intended to "further encourage companies to create compliance programs that help prevent, detect, and remediate misconduct and to report misconduct when it occurs," which has been another key focus of the DOJ. Companies would be well advised to review existing compliance programs and internal controls early to ensure that current procedures are sufficient to effectively detect and prevent misconduct. Companies should also ensure that they are encouraging internal reporting by maintaining reporting mechanisms that are robust, accessible, and designed to facilitate prompt and thorough investigation of complaints with appropriate remediation. Additionally, it is critical that companies and individuals consult with outside counsel as to whether to self-report as soon as any potential misconduct is detected, because time is of the essence with the pilot program.
The BakerHostetler White Collar, Investigations, and Securities Enforcement and Litigation team is composed of dozens of experienced individuals, including attorneys who have served in the DOJ and at the U.S. Securities and Exchange Commission (SEC). Our attorneys include a former U.S. attorney, former assistant U.S. attorneys and unit chiefs, as well as partners who have served in the SEC's Division of Enforcement and the SEC's Office of the General Counsel. Our team has extensive experience in defending regulatory investigations and litigation and in providing compliance counseling. Please feel free to contact any of our experienced professionals if you have questions about this alert.