Avoiding Prosecution: New DOJ Policies and the Benefits of Self-Disclosure

Takeaways

• The DOJ has revised its Corporate Enforcement Policy to offer more certainty and stronger incentives for companies that voluntarily self-disclose misconduct.
• Companies that meet the DOJ’s core requirements may now receive a full declination of prosecution, not just a presumption.
• Internal investigations should be prioritized to assess misconduct and make timely disclosure decisions before whistleblowers or regulators intervene.

On May 12, 2025, Matthew Galeotti, who was recently named head of the Criminal Division at the U.S. Department of Justice (DOJ), spoke at the Securities Industry and Financial Markets Association, a major securities trade association event. In his speech, Galeotti addressed the Criminal Division’s new white-collar priorities and changes to its voluntary disclosure program. Galeotti explained that DOJ is “turning a new page on white-collar and criminal enforcement” by revising three key corporate enforcement policies. He emphasized that, gone are “[e]xcessive enforcement and unfocused corporate investigations”—something often complained about by businesses under scrutiny. Rather, the Criminal Division will focus on the “most egregious white-collar crime.” That same day, the Criminal Division issued a memorandum discussing more fully the changes described in Galeotti’s speech. It announced that healthcare, as well as trade and customs fraud—particularly tariffs—are at the top of the Criminal Division’s list.

During his speech, Galeotti elaborated on the major changes involving the DOJ’s Corporate Enforcement and Voluntary Self-Disclosures Policy (CEP). His primary message was “[s]elf-disclosure is the key to receiving the most generous benefits the Criminal Division can offer.” Galeotti made clear that companies that self-disclose and meet “other criteria” can avoid criminal prosecution by receiving a declination of criminal prosecution, not just a presumption of a declination. To qualify, companies must satisfy the Criminal Division’s “core requirements” of (1) voluntary self-disclosure, (2) full cooperation, (3) timely and appropriate remediation, and (4) no aggravating factors. With this new policy, DOJ’s goal is to end “guessing games” about the benefits of self-disclosure.

In addition, Galeotti discussed two other areas: (1) the DOJ monitor selection policy and (2) the DOJ whistleblower program. He explained that, in the Criminal Division’s view, the value of monitors is often outweighed by the burdens. While some “narrowly tailored” monitorships will be allowed to continue, they will be carefully scrutinized. Galeotti also announced two of the new priority areas for DOJ Corporate Whistleblower Program. Not surprisingly, these areas are tariff and customs and trade fraud and “violations of federal immigration law,” which reflect some of the most prominent Trump Administration policies.

The Criminal Division’s announcement and Galeotti’s speech address longstanding concerns regarding how much benefit could be expected from corporate self-disclosure of wrongdoing. The previous lack of certainty of what benefit would actually be received from self-disclosure was seen as an impediment to maximizing the utility of the program. This change also reflects the Trump Administration’s efforts to reduce corporate investigations and focus on individuals. As the DOJ memorandum makes clear, it is the Criminal Division’s view that administrative and civil remedies are often more appropriate for companies, while criminal prosecutions should focus on the individuals allegedly committing the crime.

Given these policy changes, internal investigations into potential misconduct within a company take on new urgency so that companies can swiftly obtain all necessary facts and make a determination in concert with their counsel as to whether and how to disclose before the potential misconduct reaches the federal government via a whistleblower or other source of information. The Dykema internal investigations team includes several former DOJ attorneys who can help our clients conduct these investigations and provide counsel for clients making disclosure determinations. They can also help determine whether any civil liability (through the False Claims Act or otherwise) might result from the conduct and/or the disclosure.