On September 15, 2022, Deputy Attorney General Lisa Monaco published a memorandum which laid out the Department of Justice’s (DOJ) new guidelines for policies regarding corporate investigations and voluntary self-disclosures. The DOJ announced it would expand and/or clarify its policies on voluntary self-disclosure, making it its goal to reward companies that have invested in compliance programs that encourage voluntary self-disclosure of potential wrongdoings. More specifically, Monaco directed all DOJ criminal prosecuting departments, including the 94 US attorneys’ offices, to review and/or draft from scratch their individual policies on corporate self-disclosure. She is requiring that each department’s policy indicate clear expectations of what self-disclosure entails (such as timing and types of information that must be handed over) and identify the concrete benefits that a self-disclosing party can expect.  Note, the new policy aims to speed up indictments against executives by promising that their companies won’t face a guilty plea or compliance monitor if they rapidly and voluntarily turn over information to the government.

While this is certainly an attempted push in the right direction for businesses who may find themselves the subject of a potential government investigation, the policy guidelines leave much room for variation and confusion as companies attempt to interpret and navigate inconsistent departmental self-disclosure policies. For instance, like many governmental policies, rules and procedures, these policies will likely be vaguely written and give prosecutors serious discretion in determining if and when they apply.

Nonetheless, voluntary self-disclosure can save a company of up to millions of dollars in fines, penalties, and costs that are associated with certain healthcare crimes. It can also avoid reputational harm that may arise from a guilty plea, and it can certainly reduce the risk of collateral consequences such as payment suspension. While perhaps a uniform policy at the DOJ level would serve as a better alternative for the sake of consistency, it will be interesting to see if these varying departmental policies truly incentivize voluntary self-disclosure, or if they instead do the opposite, and disincentivize companies from self-disclosing due to the enormous amount of uncertainty surrounding them.

If you or your business find yourselves the potential source of a government investigation, or if you have any questions regarding the self-disclosure process, please do not hesitate to contact the experienced attorneys at Nicholson & Eastin, LLP. We would be happy to assist you in interpreting the relevant policies that are to come and provide further advice as you navigate the process. Please call today for a consultation.