Once You’ve Decided to Self-Disclose, Here’s How to Do It Right

Contrary to what some commentators have observed over the past year, federal white-collar crime enforcement is not dead. The DOJ’s enforcement priorities have, in some respects, shifted, as they often do with a new presidential administration, and the focus is now on guarding the public fisc and protecting consumers from fraud and collusion that affects their pocketbooks.      

These shifts in enforcement priorities along with the changes in DOJ’s self-disclosure policy and the adoption of a new antitrust whistleblower program present challenges as well as opportunities. Navigating this new landscape in the most effective manner requires companies to understand the benefits and drawbacks to self-disclosure, including what makes for an effective disclosure and compliance program.

What makes for an effective disclosure

The DOJ announced its new corporate enforcement and voluntary self-disclosure policy (CEP) in March, which provided for the first time a department-wide policy for all criminal matters except for certain antitrust violations. This change is significant. Before the unified CEP, there was a patchwork of corporate leniency programs scattered throughout the DOJ and some of the 93 US attorney’s offices. This inconsistency led to uneven enforcement and uncertainty for companies, which undoubtedly led fewer companies to take advantage of these policies. The policy’s new uniformity coupled with its requirement for publication of declinations and the reasoning behind those declinations should provide critical benchmarking and guidance for companies struggling with the disclosure decision.

The CEP largely adopted many of the changes made by the DOJ in May 2025 to its prior disclosure policy. Most importantly, it retains a three-tier structure for evaluating corporate disclosures.

• If a company voluntarily self-discloses, fully complies with the DOJ, timely and appropriately remediates, and there are no aggravating circumstances, then the company “will” receive a full declination, a significant change from the “presumption” of a declination from prior policies.
• If the company self-reports in good faith but does not meet the definition of voluntary disclosure and/or it has other aggravating factors, they may still qualify for “near miss” treatment if they fully cooperate and timely and appropriately remediate the issue. Benefits of this “near miss” treatment include a nonprosecution agreement and a reduction of between 50% and 75% in fines.
• If the company does not cooperate, prosecutors retain the discretion to recommend up to 50% reduction in fines. 

Despite the allure of a full declination letter, the self-disclosure policy still presents significant questions to consider before a company pulls the trigger on disclosing. The most significant consideration is that self-disclosure does not protect a company from collateral consequences, most notably from the DOJ’s Civil Division, the SEC and state attorneys general. Nor does it prevent private parties from suing the company after the disclosure is made. But the policy’s requirement for timely disclosure puts pressure on the company to make this decision, requiring companies to disclose “reasonably promptly” after learning of the misconduct. This pressure is further reinforced by the DOJ’s suggestion that companies self-disclose even before completing their internal investigations, forcing what may feel like an impossible choice: invite unwanted DOJ scrutiny and other potential litigation before determining whether wrongdoing occurred or sacrifice the benefits of early disclosure. Still, on balance, the new self-disclosure policy offers more certainty and a better risk-reward calculus than prior iterations. 

Once a company makes the decision to disclose, there are several important ingredients to a strong and effective self-disclosure. Those ingredients include:

• If a company has made the decision to disclose, then disclose. The biggest mistake companies make in presenting to government investigators and regulators is minimizing the conduct they came to admit. If there is a bad document or fact, own it. That does not mean a company cannot put that bad email or fact into context, but minimizing it defeats the purpose of disclosure. Not only will that company put in jeopardy its cooperation credit, it may make investigators believe the company is hiding something, which may embolden them to investigate more aggressively.
• Before disclosing, a company will want to know or have a general idea as to who the most culpable actors are and should be prepared to share that information with the government investigators. The policy’s focus on speed makes this a tall task but not an impossible one. A company can always qualify its findings based on where it is in the investigation. But walking into a self-disclosure without names of those the company believes are responsible will only be met by government investigators with deep skepticism and frustration.
• The company should be as helpful as it can with the government investigators. If the internal investigation has revealed who the wrongdoer is, present a deck to the investigators that walks them through the evidence supporting that conclusion. The more a company can make the conduct look like the acts of one or two individuals gone awry, the more likely the government investigators will focus on them, not the company. After the meeting, offer to hand over relevant materials to investigators and be available for follow-up calls to make sure the investigators continue to focus on the wrongdoers, not the company.
• In making the presentation, the company should demonstrate its diligence in handling the investigation. Tell the investigators where the company looked, what it reviewed and what it did not review and why. The company does not need to look under every rock, but it should be able to explain why it chose not to look under certain rocks, e.g., why the company did not search the emails belonging to a senior executive who may have had knowledge of the conduct at issue. Like anything, the cost and thoroughness of the investigation must be measured against the conduct under investigation. 
• The company should highlight if it uncovered the wrongdoing because of its compliance policy. The best way to do that is to walk government investigators through the company’s process of how it came to learn about the conduct. If the conduct went on for too long because of a lax compliance policy, own it but then explain how the company is making the program stronger. Either way, the company should leave the government with the impression that its compliance policy is or will soon be effective.   

Compliance

Bosch Case Provides First Glimpse of NatSec Application of Department-Wide CEP

by Roberto Gonzalez and Samuel Kleiner

July 13, 2026

While the CEP generally aligns with the prior policy, it offers greater potential benefits to a company that voluntarily self-discloses, cooperates and remediates misconduct

Read moreDetails

The Antitrust Division’s whistleblower program

The self-disclosure policy applies to all corporate criminal matters handled by the DOJ, with the exception of antitrust violations under the Sherman Act. Violations of Section 1 of the Sherman Act have a carve-out because the DOJ’s Antitrust Division has its own longstanding, bespoke corporate leniency program. Under the leniency policy, a corporation can avoid criminal prosecution for antitrust violations by confessing their role in the illegal activities, fully cooperating with the division and meeting other specified conditions. The policy offers substantial carrots. In addition to avoiding a criminal conviction and fine, companies that receive leniency can obtain nonprosecution coverage for their directors, officers and employees who cooperate in the investigation. They also are spared treble damages and joint and several liability in the inevitable follow-on civil litigation. 

Although the leniency policy has since 1993 been a fertile source of case leads for the division, over the past decade, it has generated fewer large cartel matters. In July 2025, to kickstart enforcement, the division partnered with the US Postal Service to create a whistleblower rewards program designed to incentivize individuals to report criminal antitrust violations. The program is a significant enforcement priority for the division that promises to reshape the way companies navigate antitrust compliance. 

So, how does it work? The USPS has statutory authority to use money obtained from criminal penalties to reward whistleblowers who report “violations of law affecting the Postal Service.” In addition to showing that the conduct affected the Postal Service, to be eligible, a whistleblower must meet certain requirements:

• The information must be reported to the division voluntarily.
• The information must be truthful, complete, not already known to the government and not derived primarily from public sources.
• The whistleblower cannot have orchestrated the conspiracy or coerced others to join.
• The information must lead to a criminal fine or penalty of at least $1 million. 

Although the reward payment is solely within the discretion of the division, there is a presumptive range of 15% to 30% of the recovered fine or penalty. 

The division has seen a surge in whistleblower complaints since creating the program and earlier this year announced its first payment to a whistleblower. In January 2026, the division announced that the Postal Service had paid $1 million to a whistleblower who provided information that led to a deferred prosecution agreement (DPA), including a $3.28 million criminal fine, with EBlock, an online car auction company. According to the DPA, EBlock acquired the assets of another company (described as “Company A”) in November 2020, including a digital platform for auctioning used cars. At the time of the acquisition, Company A had been engaged for years in a conspiracy with “Company B” to manipulate the online vehicle auctions. 

The whistleblower program increases the prospect that the division will detect cartels, a stated focus of the Trump administration, as individuals with firsthand knowledge of the conduct now have a powerful pecuniary incentive to report. Now, in addition to gauging whether another co-conspirator will run to the division first, the whistleblower program creates a risk that one of the company’s own employees will beat the company to the punch by reporting to the division and perhaps foreclose the company’s ability to obtain leniency. This should change the risk calculus and the urgency for companies considering whether to approach the division to seek leniency. 

The whistleblower program should also spur companies to re-evaluate their compliance regime. A state-of-the-art compliance program deters misconduct. But at the very least, a compliance program must enable the company to uncover problems swiftly so they can be addressed. Should a violation occur, having a robust compliance program allows a company to make the argument to the DOJ that it is deserving of more lenient treatment (or even a declination). Below are some of the features DOJ is looking for in an effective compliance program. 

• The company should assess where in its business competition issues are likely to occur and tailor its compliance program accordingly. The assessment should address, among other topics: (a) interactions with competitors; (b) human resources and hiring practices; (c) the types of communication platforms its employees are using; (d) the use of algorithms, benchmarking and AI. 
• For companies with diverse lines of business or multijurisdictional businesses, antitrust training should be tailored and adjusted to meet the varied risks and employee responsibilities. Industry lessons learned should be incorporated into the training. Employees should certify attendance at trainings and conformity with compliance policies and codes of conduct. Documentation of trainings should be kept.
• Companies should periodically evaluate their antitrust compliance programs, including through auditing. Compliance departments should produce a report on the effectiveness of the company’s antitrust compliance program that includes the results of any audit, detection of any potential violations and how the company compliance program is being adjusted to address these points.
• Senior leaders should foster a compliance culture and be held accountable for compliance failures. Those leaders should be part of the messaging around compliance and enforce a zero-tolerance policy toward violations.
• Companies should provide clear and confidential channels for employees to raise competition-related concerns internally and must never retaliate against an employee for reporting antitrust violations. See 15 U.S.C. § 7a-3, provides anti-retaliation protections for employee whistleblowers who report antitrust violations.
• The company should have a plan to address antitrust violations that includes examination of where controls failed, revisions to internal controls and escalation and reporting to authorities when appropriate. The company must also be prepared to take disciplinary action against wrongdoers.