DOJ’s department-wide Corporate Enforcement Policy incentivizes disclosure

Key takeaways: 

• DOJ created a single, department-wide Corporate Enforcement Policy (CEP) standardizing how corporate misconduct cases are handled across DOJ components and replacing the patchwork of policies previously used by individual U.S. Attorneys’ Offices and divisions (except in antitrust matters).
• The CEP strongly incentivizes early voluntary self-disclosure, cooperation, and remediation, offering companies the possibility of a declination where these factors are met and no significant aggravating circumstances exist, and substantial penalty reductions even when declination is not available.
• The policy establishes a three-path framework for corporate resolutions—declination (Path I), reduced-penalty resolutions such as non-prosecution agreements (Path II), and prosecutorial discretion with more limited reductions (Path III).

The DOJ released its first-ever department-wide corporate enforcement policy (CEP) on March 10, 2026. The uniform CEP offers tiers of reduced penalties to companies that timely report misconduct and fully cooperate with the Department and applies to all DOJ components, superseding corporate enforcement policies currently in effect across U.S. Attorneys’ Offices. The CEP applies to all corporate matters handled by the Department, including to misconduct uncovered in the context of M&A pre- or post-acquisition due diligence, with the exception of antitrust cases. The CEP also includes appendices with a flow chart and definitions, notes and comments to further aid interpretation of the policy. The CEP may be found here.

The CEP is divided into three “paths” for companies: 

1. Path I: The CEP Declination Path
2. Path II: The “Near Miss” Voluntary Disclosure or Aggravating Factors Warranting Resolution
3. Path III: The Prosecutorial Discretion Path (for companies that do not qualify for Paths I or II)

Under Path I, DOJ will decline to prosecute a company for criminal conduct when the following factors are met: 1) voluntary self-disclosure to the appropriate Department criminal component, or good faith disclosure to another component in certain circumstances; 2) full cooperation with the investigation; 3) timely and appropriate remediation; 4) absence of certain aggravating circumstances. 

As to the first factor, the CEP provides that the DOJ encourages companies to make voluntary self-disclosures of potential wrongdoing at the earliest possible time, even if the company has not yet completed an internal investigation. With respect to the second factor, the CEP states that a company fully cooperates when it proactively discloses all facts and non-privileged evidence relevant to the conduct at issue in a timely, truthful, and accurate manner. However, the CEP recognizes that disclosure of overseas documents may sometimes be prohibited or restricted due to data privacy laws, blocking statutes, or other requirements of foreign law. In such circumstances, the company bears the burden of establishing the existence of the prohibition or restriction, and identifying reasonable and lawful alternatives that would assist the DOJ in preserving and obtaining the necessary facts, documents, and evidence for its investigations and prosecutions. With respect to the third factor, the CEP does not provide a specific timeframe for remediation. Instead, the appropriateness of remediation is evaluated based on the specific circumstances of the case. As to this fourth factor, the CEP notes that aggravating circumstances are those “related to the nature and seriousness of the offense, egregiousness or pervasiveness of the misconduct within the company, severity of harm caused by the misconduct, or corporate recidivism, specifically, a criminal adjudication or resolution either within the last five years or otherwise based on similar misconduct by the entity engaged in the current misconduct.” Prosecutors, however, retain discretion to recommend a CEP declination even in the presence of aggravating circumstances, and must weigh the severity of those circumstances against the company’s cooperation. CEP declinations, which will be made public, will require companies to pay all disgorgement and restitution to victims. The CEP contains an important exception regarding whistleblowers. Specifically, the CEP provides that if a whistleblower makes both an internal report to a company and a whistleblower submission to DOJ, the company can still qualify for a declination,  even if the whistleblower submits to DOJ before the company self-discloses, provided that the company self-reports within 120 days of receiving the whistleblower's internal report and meets the other requirements. 

Path II exists for those cases in which a company does not qualify for declination under Path I. This can occur where a company acts in good faith to self-report misconduct but the reporting does not qualify as a voluntary self-disclosure under the guidelines, or where aggravating factors warrant criminal resolution. The CEP provides that the Department will: 1) provide a non-prosecution agreement (absent egregious or multiple aggravating circumstances); 2) allow a term length of fewer than three years; 3) not require an independent compliance monitor; and 4) provide a reduced fine of at least 50% but no more than 75% off the low end of the Sentencing Guidelines. 

If a company is not eligible for declination under Path I or resolution under Path II, prosecutors retain discretion under Path III to determine the appropriate resolution. With respect to monetary penalties, companies may not receive a reduced fine of more than 50%. Prosecutors must consider the extent of a company’s cooperation, remediation, and recidivism in determining the amount of the reduction. 

This policy is consistent with DOJ’s revised corporate enforcement policies for the Criminal Division announced in May 2025, which reinforced the incentives for companies to voluntarily self-disclose to DOJ and clarified the path to declinations. See Client Alert, New DOJ Memo Addressing White Collar Enforcement Eases Corporate Penalties and Prioritizes Individual Accountability. This new policy is more expansive; it applies department-wide, except for enforcement actions related to antitrust. It supersedes all component-specific and U.S. Attorney’s Office-specific policies currently in effect. This includes, for instance, the Southern District of New York’s recent policy on self-disclosure for financial crimes. As a result, the policy signals DOJ’s efforts to further standardize the pathway to declination for companies and counsel by giving companies consistent guidelines across the Department. 

Additional authors: A. Scott Bolden, Anthony Todd