[co-author: Daniela Melendez]*
On April 15, 2023 Nicole Argentieri, Principal Deputy Assistant Attorney General and the Head of the U.S. Department of Justice’s (“DOJ’s”) Criminal Division, announced a new voluntary self-disclosure program for individuals complicit in certain types of organized criminal activity. Under the pilot program, culpable individuals are entitled to leverage the benefits of a non-prosecution agreement (“NPA”) if they: (1) voluntarily, (2) truthfully, and (3) completely self-disclose original information regarding misconduct that was unknown to the department in certain “high-priority” enforcement areas, (4) fully cooperate and are able to provide substantial assistance against those equally or more culpable, and (5) completely forfeit any ill-gotten gains and appropriately compensate victims.
The program aims to provide tangible benefits to individuals who provide disclosures involving money laundering and criminal compliance-related schemes, integrity of financial markets involving financial institutions, foreign corruption, health care fraud, federal contract fraud, and domestic corruption.
Under the pilot program, it is paramount that the whistleblower provides a voluntary self disclosure to the Criminal Division prior to the commencement of any investigation by the government. In addition, the whistleblower must not have any preexisting obligation to make a report to the government. Echoing the DOJ’s broader Corporate Enforcement Policy, individuals must fully cooperate and provide truthful and complete disclosure of all information then known. Furthermore, for a whistleblower to qualify for an NPA, they must agree to disgorge any profits and provide restitution to victims. The pilot program also requires that—in order to receive a benefit under the program—the whistleblower must be first in time to report the misconduct. According to the DOJ, this incentive puts pressure on individuals to report misconduct as soon as possible. It is important to note that the pilot program is not available to certain higher-level corporate officials such CEOs or CFOs, and high level foreign officials, domestic officials, or individuals who organized or led the criminal scheme in question.
Although the pilot program is intended to reinforce other programs that the DOJ has in place to uncover criminal conduct, it poses several challenges. For instance, in cases where the whistleblower does not provide all the information necessary to prosecute the misconduct, will the whistleblower benefit from a NPA? As described above, another challenge for whistleblowers under the pilot program is that they must meet several criteria to obtain an NPA. On the other hand, it is important to acknowledge the DOJ effort into creating more avenues for individuals to come forward and report misconduct.
*Associate
