DOJ Criminal Division Revises Its Corporate Enforcement Policy, Monitor Selection Policy, and Whistleblower Award Program

On May 12, 2025, the Criminal Division of the U.S. Department of Justice (DOJ) revised its Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) and Corporate Whistleblower Awards Pilot Program (Whistleblower Program) and released a new Memorandum on Selection of Monitors in Criminal Division Matters (Monitor Selection Memo), which supersedes prior guidance on monitors, including the March 2023 memo from former Criminal Division Assistant Attorney General Kenneth Polite. This article summarizes some of the most significant changes to DOJ policies and highlights other ways in which the policies remain relatively the same.

Corporate Enforcement and Voluntary Self-Disclosure Policy Revisions: Promises of More Declinations and Clearer Benefits for Self-Reporting

First introduced as the FCPA Pilot Program at the end of the Obama administration, the CEP is intended to incentivize companies to voluntarily self-disclose wrongdoing to DOJ. The first Trump administration revised the CEP by creating a “presumption that [a] company will receive a declination” when it voluntarily self-discloses, fully cooperates, and timely and appropriately remediates misconduct, absent aggravating circumstances relating to the seriousness of the offense or the nature of the offender, including criminal recidivism. The CEP was modified once more under the Trump administration, in March 2019, and again under the Biden administration in January 2023 to offer additional incentives for companies to self-disclose. (See our January 2023 client alert discussing the history of the CEP and its revisions.)

According to the current Head of the Criminal Division, Matthew Galeotti, the most recent revisions to the CEP are intended to “simplify the policy and clarify the outcomes that companies can expect.” Three of the most recent changes are particularly notable and highlighted below:

• First, rather than creating a presumption of a declination that can be overcome in the presence of aggravating circumstances, the revised CEP states that the Criminal Division will decline if the company voluntarily self-discloses, fully cooperates, and timely and appropriately remediates the misconduct and there are no aggravating circumstances. While the previous and new formulas for a declination do not appear to be materially different, other language in the CEP and associated statements by Galeotti suggest that the intent of the most recent revision is to make it easier for a company to argue that aggravating circumstances should not be dispositive, including by requiring prosecutors to consider whether the severity of the aggravating circumstances is outweighed by the company’s cooperation and remediation.
• Second, the revised CEP provides that companies that are not eligible for a declination—because either (1) the self-report does not meet the requirements for a voluntary self‑disclosure or (2) aggravating circumstances warrant a criminal resolution—will be eligible to receive a non-prosecution agreement (NPA) with a term of less than three years, a 75% reduction off the low end of the U.S. Sentencing Guidelines fine range, and no compliance monitor. A company could fail to meet the requirements for a voluntary self-report when, for example, the company does not self-report within a reasonably prompt time after the company becomes aware of the misconduct[1] or when, unbeknownst to the company, DOJ is already aware of the misconduct at the time of the self-report. These changes are helpful to companies that self-report but do not receive a declination.
• Third, the revised CEP also contains what Galeotti described as an “easy-to-follow flow chart” regarding the benefits that a company can obtain under the CEP. While not a substantive change, the chart is a useful graphical depiction of the benefits potentially available under the CEP.

Deciding whether to self-report misconduct to DOJ is one of the most difficult choices a company can make. The benefits of self-reporting are not always clear because they are extremely dependent on each matter’s particular set of facts and circumstances, but we have long commended DOJ’s efforts to add transparency to its decision-making processes and to increase the incentives to self-report, and that extends to this most recent revision to the CEP.  

Monitor Selection Policy Revisions: A Presumption Against Monitors?

In March 2008, then-acting Deputy Attorney General Craig S. Morford issued a memo providing guidance to DOJ prosecutors as to when an independent compliance monitor should be required as part of a deferred prosecution agreement (DPA) or NPA. Since then, leaders of DOJ’s Criminal Division have issued additional guidance as to the use of monitors in Criminal Division resolutions. Under the first Trump administration, then-Assistant Attorney General (AAG) for the Criminal Division, Brian Benczkowski, issued a memo that, among other things, cautioned against scope creep and instructed prosecutors to carefully consider and memorialize in any resolution agreement the expected scope of the monitorship. Under the Biden administration, then-AAG Kenneth Polite issued a memo (the Polite Monitor Memo) that, among other things, made clear that prosecutors “should not apply presumptions for or against monitors,” instructed prosecutors to consider 10 factors when determining whether a monitorship should be required as part of an enforcement action, and stated that the monitorship selection should incorporate consideration of diversity, equity, and inclusion (DEI). Four of the most notable recent changes are described below:

• First, although the new Monitor Selection Memo does not go so far as to state that there is now a presumption against monitors, the bar for requiring a monitor as part of an enforcement action is clearly higher than before (at least in theory, as discussed below). In his speech announcing the Memo, Galeotti stated, “the value monitors add is often outweighed by the costs they impose, so you can expect to see fewer of them going forward.”
• Second, the revised policy reduces from 10 to four the number of factors that prosecutors must consider in determining whether a monitor is appropriate. Those four factors are as follows: (1) the risk of recurrence of criminal conduct that significantly impacts U.S. interests; (2) the availability and efficacy of other independent government oversight; (3) the efficacy of the compliance program and culture of compliance at the time of the resolution; and (4) the maturity of the company’s controls and ability to independently test and update its compliance program. According to the Monitor Selection Memo, these factors are designed to “strike the appropriate balance between the need to ensure effective compliance programs with the need to eliminate unnecessary burden.”
• Third, DOJ will now have considerably more control over the monitor’s work. In particular, the Monitor Selection Memo gives DOJ influence over the monitor’s rates and budgets. The Memo states that monitors must cap their hourly rates; must, with their initial work plans, submit to the company and the Criminal Division a budget for completing the entire monitorship; and must submit to the company and the Criminal Division updated estimates before beginning each phase of their review. The Criminal Division must approve these estimates before the monitor’s work begins, and the Memo suggests that the Criminal Division can reject these estimates if it deems any of the work unnecessary to achieve the terms of the agreement.

• Fourth, the Monitor Selection Memo provides that “[a]ny submission or selection of a monitor candidate by either the company or the Criminal Division should be made without unlawful discrimination against any person or class of persons.” Interpreted in light of the Trump administration’s policies, this effectively prohibits the consideration of DEI factors in the monitor selection process.

In practice, the first two changes might not be as consequential as they might seem. Most companies resolving cases with the Criminal Division in recent years have avoided monitorships, even under the Biden administration. In our Top 10 International Anti-Corruption Developments: 2024 Year in Review, we noted that FCPA corporate monitorships were “still the exception,” so long as companies can demonstrate effective compliance measures and remediation. Two of the 10 factors in the Polite Monitor Memo—(1) whether, at the time of the resolution and after a thorough risk assessment, the corporation has implemented an effective compliance program and sufficient internal controls to detect and prevent similar misconduct in the future; and (2) whether, at the time of the resolution, the corporation has adequately tested its compliance program and internal controls to demonstrate that they would likely detect and prevent similar misconduct in the future—seemed to be of far more significance than the other factors in DOJ’s decision-making process. And these two factors are analogous to the final two factors in the Monitor Selection Memo.

Corporate Whistleblower Awards Program Revisions: Expansion of Subject Matter Areas Eligible for Award Creates More Whistleblower Risk for Companies

The Corporate Whistleblower Awards Program was launched as a pilot in August 2024 to incentivize individuals to report to the Criminal Division information about four categories of misconduct: (1) misconduct involving financial institutions, (2) foreign corruption, (3) domestic corruption involving bribes or kickbacks to government officials, and (4) healthcare fraud involving private insurance plans. The recent revisions leave the structure of the Program largely unchanged but expand the categories of covered misconduct in two ways.

• First, the revised Program adds four new categories of misconduct for which whistleblowers may be able to earn awards: (1) violations by or through companies related to fraud against, or the deception of, the United States in connection with federally funded contracting or federal programs, where such fraud does not involve healthcare or illegal healthcare kickbacks; (2) violations by or through companies related to trade, tariff, and customs fraud; (3) violations by or through companies related to federal immigration law; and (4) violations by or through companies related to sanctions offenses, material support of terrorism, or cartels and transnational criminal organizations, including money laundering, narcotics, Controlled Substances Act, and other violations.
• Second, the revised Program appears to expand the healthcare fraud category. The revised Program now covers both private and public healthcare benefit programs and removed other limiting language.

The new and expanded categories generally align with the enforcement priorities set out in Criminal Division’s May 12, 2025 memo titled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime” (the Enforcement Priorities Memo), and it makes sense that the Criminal Division would take steps to increase whistleblower tips that align with its priorities. What is interesting is that the new memo did not modify the foreign bribery category to align with President Trump’s Executive Order pausing FCPA enforcement for at least 180 days or the Enforcement Priorities Memo, both of which suggest that DOJ will pursue FCPA cases only if doing so would further U.S. national security and economic interests.

At the end of 2024, Criminal Division officials stated that the Program, though quite new, was already starting to produce actionable information. If that remains true, then companies that face risks in any of the eight areas covered by the Program would be well advised to consider conducting risk assessments, ensure that their compliance programs are sufficient to mitigate the risks, and take steps to appropriately encourage employees and others to report concerns internally rather than to DOJ. 

[1] In many ways, this seems to be a codification of current practice. In September 2023, DOJ entered into an NPA, rather than a declination with disgorgement, with a company whose self-disclosure it deemed to not be “reasonably prompt” for purposes of the CEP. We noted at the time that “[t]his suggests that DOJ may be reserving NPAs for cases in which DOJ believes that the company imperfectly met the elements of the CEP.”