DOJ’s New Department-Wide Corporate Enforcement and Voluntary Self-Disclosure Policy Incentivizes Early Disclosure of Corporate Misconduct and Standardizes Criminal Division Policy

Introduction

The U.S. Department of Justice has introduced its first department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy bringing greater predictability to corporate enforcement while reinforcing DOJ’s long-standing focus on incentivizing early disclosure.

Key Takeaways: 

• First DOJ-wide corporate enforcement framework: The policy creates a unified approach to corporate criminal enforcement and voluntary self-disclosure in non-antitrust matters. 
• Early self-disclosure may lead to declination: Companies that voluntarily self-disclose misconduct, fully cooperate, timely remediate misconduct, and lack aggravating circumstances may avoid criminal charges entirely.
• “Near miss” disclosures still receive significant benefits: Companies that do not fully qualify for declination may obtain non-prosecution agreements, avoid compliance monitors, and receive fine reductions of 50–75% off the low end of the U.S. Sentencing Guidelines range.
• Policy expands the concept of recidivism and adjusts penalty discretion: Prior  criminal adjudications or resolutions—whether based on similar or unrelated misconduct—can now affect eligibility for benefits, and  prosecutors have broader discretion in determining fine reductions for “near misses.” 

On March 10, 2026, the United States Department of Justice (“DOJ”) announced a Department-Wide Corporate Enforcement and Voluntary Self-Disclosure Policy (“CEP”) applicable to all non-antitrust criminal matters. Through the CEP, companies that self-disclose misconduct early may avoid any criminal charges, and even those companies that do not meet the requirements for a declination may be eligible for significantly reduced penalties. 

The CEP is the first DOJ department-wide corporate enforcement policy, “superseding all component-specific or U.S. Attorney’s Office-specific corporate enforcement policies currently in effect,”¹ including DOJ’s May 2025 Criminal Division Corporate Enforcement Policy and the Southern District of New York’s (“SDNY”) recent voluntary self-disclosure program,² among others. The CEP represents a continuation of DOJ’s recent efforts to clarify the contours of corporate enforcement actions and, for companies that self-disclose, unify and streamline the process.

The CEP’s Incentive Structure

The substance and structure of the new CEP largely aligns with the Corporate Enforcement and Voluntary Self-Disclosure Policy issued by DOJ’s Criminal Division in May 2025 (“May 2025 Criminal Division CEP”),³ but includes some notable modifications as discussed below and outlines three potential paths for corporate criminal resolutions. 

Path 1: Declination. DOJ will decline to prosecute a company for criminal misconduct where the company: (1) voluntarily self-discloses the misconduct to an appropriate DOJ criminal component; (2) fully cooperates with DOJ’s investigation; (3) timely and appropriately remediates the misconduct; and (4) has no applicable aggravating circumstances. A disclosure is voluntary where the disclosure (1) is made in good faith to the appropriate DOJ component; (2) concerns conduct not previously known to DOJ; (3) is made when there is no pre-existing obligation to report; (4) occurs before an imminent threat of disclosure or a governmental investigation; and (5) is made within a reasonably prompt time after the company becomes aware of the misconduct. Prosecutors retain the discretion to recommend a CEP declination even if there are aggravating circumstances so long as the company satisfies the other three requirements. 

When DOJ declines to prosecute under the CEP:

• • The company will be required to pay all disgorgement/forfeiture as well as restitution/victim compensation resulting from the misconduct at issue.
  • The company will not be subject to a criminal fine.
  • DOJ will make the declination public. 

Path 2: Near Misses. For “near miss” scenarios, where a company’s self-disclosure does not qualify as voluntary under the CEP, or where aggravating circumstances are present, DOJ will: (1) provide a non-prosecution agreement with a term fewer than three years; (2) not require an independent compliance monitor; and (3) provide a significant fine reduction of “at least 50% but not more than 75%” off the low end of the U.S. Sentencing Guidelines (the “Sentencing Guidelines”) range. 

Path 3: All Other Resolutions. If a company does not satisfy the criteria for declination or other benefits under the CEP, prosecutors maintain discretion to determine the appropriate resolution, including form, term length, compliance obligations, and monetary penalty. For these resolutions, DOJ will not recommend a reduction of more than 50% off the fine under the Sentencing Guidelines, but the CEP establishes a presumption that the reduction will be taken from the low end of the Guidelines range for companies that fully cooperate and timely remediate.

Key Changes

Although the new CEP remains closely aligned to the May 2025 Criminal Division CEP, it includes some key changes:

Expanded Definition of Recidivism. The May 2025 Criminal Division CEP deemed recidivism as an aggravating factor when a company had a “criminal adjudication or resolution within the last five years based on similar misconduct.” The new CEP expands the definition of recidivism to include a criminal adjudication or resolution of similar misconduct regardless of when it occurred, as well as a criminal adjudication or resolution of unrelated misconduct if within the last five years. 

Increased Prosecutorial Discretion on Fine Range. The May 2025 Criminal Division CEP required a reduction of 75 percent off the low end of the Sentencing Guidelines fine range for “near miss” resolutions. The new CEP continues to offer a significant reduction, but allows for additional prosecutorial discretion by establishing a reduction range of “at least 50% but not more than 75%” off the low end of the Guidelines range.

Cooperation Credit. The new CEP requires prosecutors to include in the resolution agreement “information sufficient to outline why a particular company received a particular amount of cooperation credit,” codifying an existing DOJ practice. 

Financial Condition. The May 2025 Criminal Division CEP provided that where a company claims its financial condition impairs its ability to cooperate fully, “the company will bear the burden to provide factual support for such an assertion,” and “the Criminal Division will closely evaluate the validity of any such claim.” The new CEP takes a softer approach, stating instead that “the Department will take into consideration the size, sophistication, and financial condition of the cooperating company when assessing the scope, quantity, quality, impact, and timing of cooperation.”

Whistleblower Disclosure Timing. A company may still qualify for a declination where a whistleblower makes both an internal report to the company and a submission to DOJ prior to the company’s self-disclosure. Under the May 2025 Criminal Division CEP, a company would qualify for declination as long as it self-reported “within 120 days after receiving the whistleblower’s internal report.” The new CEP encourages earlier disclosure, requiring the company to self-report “as soon as reasonably practicable but no later than 120 days” after receiving the internal report.

Disclosure to Appropriate DOJ Component. To qualify for a declination, the CEP requires that disclosures be directed to the “appropriate” component within DOJ.⁴ Disclosures made to federal regulatory agencies, state and local governments, or civil enforcement agencies generally do not meet the voluntary disclosure criteria under the CEP, however, DOJ retains discretion to determine whether good faith disclosures to such entities meet the CEP’s criteria. Disclosure to any entity will still be considered as part of a company’s cooperation and remediation efforts.

Implications

The CEP offers significant benefits to companies that self-disclose in a timely manner, including the potential for a declination and a marked reduction in criminal fines. The DOJ-wide policy provides predictability and consistency across departments and U.S. Attorney’s Offices, and the availability of benefits is no longer based on the office or component overseeing the matter. Although this approach provides more certainty for companies that self-report, it also removes benefits offered by certain office-specific policies. For example, unlike the CEP, SDNY’s recently-announced self-disclosure program did not treat the “seriousness of the offense,” “pervasiveness of the misconduct,” or “past criminal adjudications” as disqualifying aggravating circumstances. On the other hand, the CEP is more forgiving to non-reporting companies than SDNY’s program, offering fine reductions at the low end of the Sentencing Guidelines for companies that cooperate and remediate, whereas the now-superseded SDNY policy did not.

Even if the CEP provides greater certainty in some areas, there are still open questions. For example, the CEP is silent on whether DOJ will consider foreign criminal resolutions or those involving subsidiaries or parent companies when assessing recidivism and aggravating circumstances. 

Conclusion

Although the new CEP introduces certain modifications, its overall approach remains consistent with the previous May 2025 Criminal Division CEP, and resolution of enforcement actions over the past year should still remain instructive. Like its predecessor, the CEP provides powerful incentives to self-disclose misconduct. By engaging counsel early and adopting a strategic approach to self-disclosure, companies can take advantage of the range of benefits offered by the new CEP.

¹ Press Release, Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases (Mar. 10, 2026). Criminal antitrust cases are still handled and governed by the Antitrust Division’s corporate leniency policy.
² SDNY Corporate Enforcement and Voluntary Self-Disclosure Program for Financial Crimes (effective February 24, 2026).
³ Justice Manual § 9-47.120 – Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy (2025).
⁴ “Good faith disclosure to one component where the matter is later brought to another appropriate component for investigation will also qualify.”

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Jim Bowman, an O’Melveny partner licensed to practice law in California; Mark A. Racanelli, an O’Melveny partner licensed to practice law in New York; Sharon M. Bunzel, an O’Melveny partner licensed to practice law in California; Lindsey Greer Dotson, an O'Melveny partner licensed to practice law in California; Mia N. Gonzalez, an O’Melveny partner licensed to practice law in New York; David N. Kelley, an O’Melveny partner licensed to practice law in Connecticut and New York; David L. Kirman, an O’Melveny partner licensed to practice law in California; Rebecca Mermelstein, an O’Melveny partner licensed to practice law in New York and New Jersey; Benjamin D. Singer, an O'Melveny partner licensed to practice law in the District of Columbia and New York; Damali A. Taylor, an O’Melveny partner licensed to practice law in California and New York; Andrew Churchill, an O’Melveny counsel licensed to practice law in New York; Cari Manning, an O'Melveny associate licensed to practice law in New York; and Faustino S. Galante, an O'Melveny associate licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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