The DOJ launched its first-ever department-wide company enforcement coverage ostensibly to convey equity and transparency to the federal government’s selections on expenses in opposition to corporations accused of prison conduct. For company leaders hoping the brand new CEP would supply them with readability on whether or not to self-report misconduct, some consultants instructed CCI editorial director Jennifer L. Gaskin firms could must proceed to reside in hope.
The Holder memo. The Thompson memo. The McNulty memo. The Yates memo. The Monaco memo. The Blanche memo. Because the Nineteen Nineties, the DOJ has revealed a litany of missives on its insurance policies for prosecuting company prison circumstances. In a March 10 information launch asserting its newest CEP replace, this time, the DOJ went a step additional, making use of the coverage department-wide, apart from antitrust circumstances, and saying it supersedes different insurance policies throughout DOJ divisions and US attorneys workplaces.
Among the many questions for senior company leaders, in response to the consultants who spoke with CCI concerning the new CEP, are what precisely supersession means and whether or not the blanket software of the coverage, the textual content of which is essentially an identical to a 2025 replace, with necessary exceptions, will meaningfully inform an organization’s decision-making on whether or not to self-report misconduct.
“As with the earlier variations of the CEP, the brand new CEP strikes the needle considerably as a result of it gives a extra uniform framework and offers corporations extra readability concerning the probably vary of outcomes, but it surely doesn’t fully change the evaluation,” mentioned Laura Perkins, a former prosecutor within the DOJ’s Felony Division who now could be a associate within the world litigation group at Cadwalader, Wickersham & Taft. “Even with the advantages supplied by the CEP, the choice of whether or not to self-report stays a sophisticated one which must be fastidiously evaluated.”
What’s new within the 2026 CEP?
The textual content of the 2026 replace is kind of just like the Felony Division CEP revealed in 2025, with “Division” changing “Felony Division.” Nevertheless, a minimum of one substantive change was made, one that will inject much more uncertainty.
In 2025, the Felony Division launched a sequence of potential paths to declination, which have been outlined in a stream chart it mentioned would assist corporations resolve whether or not to self-report. The chart included a “near-miss” class by which an organization may obtain a positive discount even when it didn’t meet the situations for a declination. That stream chart is duplicated within the 2026 DOJ-wide CEP (in truth, it seems to be like a replica of a replica), however the promised positive discount for near-miss circumstances has modified, from a flat 75% off the low finish of the US sentencing pointers vary to between 50% and 75% of the sentencing pointers vary. (The 2023 CEP, launched underneath the earlier presidential administration, equally had a 50% to 75% vary.)
So whereas added uniformity in dealing with disclosures is a step in the proper route, mentioned Keith Rosen, a former assistant US lawyer and now co-head of worldwide investigations at Norton Rose Fulbright, certainty is just not iron-clad.
“This iteration may very well make outcomes much less predictable, as in some locations it dilutes the extent of certainty supplied to corporations and inserts extra prosecutorial discretion into the method,” Rosen instructed CCI.
Different substantive modifications:
- Recidivism: The 2025 model disqualified corporations with a decision or enforcement motion “throughout the final 5 years primarily based on related conduct.” The brand new model provides “or in any other case,” eradicating the time restrict for related misconduct and leaving it to the DOJ’s discretion to find out when previous conduct is comparable sufficient to be disqualifying.
- Whistleblowing: In 2025, the Felony Division gave corporations 120 days from an inside whistleblower report back to self-disclose conduct; now, the steering requires disclosure “as quickly as moderately practicable however no later than 120 days.” Meaning even when an organization experiences throughout the 120-day window, the division should discover the report was too gradual.
- Regulatory disclosure: Each the 2023 and 2025 Felony Division CEPs have been silent on whether or not disclosures to regulators or civil enforcement businesses may qualify as self-reporting; the 2026 model is express: it’s as much as the DOJ. That is dealt with in a footnote relatively than within the coverage itself.
Notably, the language round supersession of DOJ component- and US attorneys office-specific insurance policies seems solely within the information launch asserting the coverage, not within the coverage itself. And the timing of the brand new DOJ-wide CEP is eyebrow-raising, coming simply two weeks after the US Legal professional’s Workplace for the Southern District of New York (SDNY) launched its personal company enforcement coverage, which whereas it has a narrower scope, making use of solely to monetary crimes affecting market integrity, supplied extra definitive insurance policies: an outlined timeline, a narrower definition of aggravating circumstances and a extra forgiving definition of voluntary disclosure.
Whether or not the timing of the 2 bulletins is greater than easy coincidence is unclear, and consultants who spoke with CCI have been break up on precisely what supersession means on this case.
“In mild of the odd sequence of occasions, it’s notable that the language concerning the CEP superseding different insurance policies appeared in DOJ’s announcement of the CEP, not within the coverage itself, which invitations the query to what extent different insurance policies are prohibited, notably the place they improve however don’t contradict with the CEP,” Perkins mentioned. “On condition that, it’s doable that SDNY will take the place that sure options of its coverage, corresponding to the way it approaches conditional declination, stay regardless of the CEP as a result of they merely describe how SDNY intends to train its discretion in areas the place the CEP has left flexibility, relatively than contradicting the CEP.”
In a written Q&A with CCI, Eric Beste and Scott Hulsey, each former DOJ officers who now are companions at Barnes & Thornburg, mentioned that the DOJ’s need for one blanket CEP will certainly constrain particular person workplaces.
“SDNY could have been making an attempt to stake out floor or transfer shortly on a problem it considered as necessary, whereas Predominant Justice was centered on standardization throughout the division,” they wrote. “The March 10 coverage makes clear, nevertheless, that DOJ finally needs a single, unified framework — and that particular person workplaces can have much less room to distinguish going ahead, a minimum of on the coverage degree.”
Carrots, sticks & positive print
For all the DOJ’s years of deploying a wide range of carrots and sticks to incentivize self-reporting of misconduct, that is still a tough choice, affected by many transferring elements, consultants agreed. So whereas the brand new CEP seeks to offer unified steering, the doc is simply that — steering.
“The coverage serves as a information — not a assure,” Beste and Hulsey wrote. “Early strategic judgment nonetheless issues enormously, together with how and when to interact DOJ, how you can body the narrative and how you can sequence inside investigative steps.”
Additionally they cautioned that whereas company compliance, threat and governance professionals are intently inspecting this CEP, the company group is just not precisely the viewers and that the federal government and enterprise leaders could have completely different objectives.
“Remember that this memo is directed to prosecutors to information their efforts and doesn’t create ‘rights’ for defendants. The division’s goal is to encourage early disclosure, however this goal could not all the time be what’s greatest for a corporation.”
Perkins agreed, including that particular person truth patterns matter greater than stream charts.
“General, compliance officers shouldn’t learn the CEP as making self-reporting a straightforward or automated selection,” Perkins mentioned. “The CEP could provide significant advantages, however the choice as as to if to self-report nonetheless requires a cautious, case-specific evaluation.”
Rosen equally cautioned corporations in opposition to assuming they may have ample time to run their inside investigation.
“The difficulty that some would possibly overestimate is the period of time an organization has to decide about whether or not to reveal and attempt to get credit score for self-reporting a problem,” Rosen mentioned. “To get credit score, the self-disclosure must occur on the ‘earliest doable time,’ which for a lot of corporations could also be earlier than there may be time to totally examine and assess an allegation.”
The DOJ launched its first-ever department-wide company enforcement coverage ostensibly to convey equity and transparency to the federal government’s selections on expenses in opposition to corporations accused of prison conduct. For company leaders hoping the brand new CEP would supply them with readability on whether or not to self-report misconduct, some consultants instructed CCI editorial director Jennifer L. Gaskin firms could must proceed to reside in hope.
The Holder memo. The Thompson memo. The McNulty memo. The Yates memo. The Monaco memo. The Blanche memo. Because the Nineteen Nineties, the DOJ has revealed a litany of missives on its insurance policies for prosecuting company prison circumstances. In a March 10 information launch asserting its newest CEP replace, this time, the DOJ went a step additional, making use of the coverage department-wide, apart from antitrust circumstances, and saying it supersedes different insurance policies throughout DOJ divisions and US attorneys workplaces.
Among the many questions for senior company leaders, in response to the consultants who spoke with CCI concerning the new CEP, are what precisely supersession means and whether or not the blanket software of the coverage, the textual content of which is essentially an identical to a 2025 replace, with necessary exceptions, will meaningfully inform an organization’s decision-making on whether or not to self-report misconduct.
“As with the earlier variations of the CEP, the brand new CEP strikes the needle considerably as a result of it gives a extra uniform framework and offers corporations extra readability concerning the probably vary of outcomes, but it surely doesn’t fully change the evaluation,” mentioned Laura Perkins, a former prosecutor within the DOJ’s Felony Division who now could be a associate within the world litigation group at Cadwalader, Wickersham & Taft. “Even with the advantages supplied by the CEP, the choice of whether or not to self-report stays a sophisticated one which must be fastidiously evaluated.”
What’s new within the 2026 CEP?
The textual content of the 2026 replace is kind of just like the Felony Division CEP revealed in 2025, with “Division” changing “Felony Division.” Nevertheless, a minimum of one substantive change was made, one that will inject much more uncertainty.
In 2025, the Felony Division launched a sequence of potential paths to declination, which have been outlined in a stream chart it mentioned would assist corporations resolve whether or not to self-report. The chart included a “near-miss” class by which an organization may obtain a positive discount even when it didn’t meet the situations for a declination. That stream chart is duplicated within the 2026 DOJ-wide CEP (in truth, it seems to be like a replica of a replica), however the promised positive discount for near-miss circumstances has modified, from a flat 75% off the low finish of the US sentencing pointers vary to between 50% and 75% of the sentencing pointers vary. (The 2023 CEP, launched underneath the earlier presidential administration, equally had a 50% to 75% vary.)
So whereas added uniformity in dealing with disclosures is a step in the proper route, mentioned Keith Rosen, a former assistant US lawyer and now co-head of worldwide investigations at Norton Rose Fulbright, certainty is just not iron-clad.
“This iteration may very well make outcomes much less predictable, as in some locations it dilutes the extent of certainty supplied to corporations and inserts extra prosecutorial discretion into the method,” Rosen instructed CCI.
Different substantive modifications:
- Recidivism: The 2025 model disqualified corporations with a decision or enforcement motion “throughout the final 5 years primarily based on related conduct.” The brand new model provides “or in any other case,” eradicating the time restrict for related misconduct and leaving it to the DOJ’s discretion to find out when previous conduct is comparable sufficient to be disqualifying.
- Whistleblowing: In 2025, the Felony Division gave corporations 120 days from an inside whistleblower report back to self-disclose conduct; now, the steering requires disclosure “as quickly as moderately practicable however no later than 120 days.” Meaning even when an organization experiences throughout the 120-day window, the division should discover the report was too gradual.
- Regulatory disclosure: Each the 2023 and 2025 Felony Division CEPs have been silent on whether or not disclosures to regulators or civil enforcement businesses may qualify as self-reporting; the 2026 model is express: it’s as much as the DOJ. That is dealt with in a footnote relatively than within the coverage itself.
Notably, the language round supersession of DOJ component- and US attorneys office-specific insurance policies seems solely within the information launch asserting the coverage, not within the coverage itself. And the timing of the brand new DOJ-wide CEP is eyebrow-raising, coming simply two weeks after the US Legal professional’s Workplace for the Southern District of New York (SDNY) launched its personal company enforcement coverage, which whereas it has a narrower scope, making use of solely to monetary crimes affecting market integrity, supplied extra definitive insurance policies: an outlined timeline, a narrower definition of aggravating circumstances and a extra forgiving definition of voluntary disclosure.
Whether or not the timing of the 2 bulletins is greater than easy coincidence is unclear, and consultants who spoke with CCI have been break up on precisely what supersession means on this case.
“In mild of the odd sequence of occasions, it’s notable that the language concerning the CEP superseding different insurance policies appeared in DOJ’s announcement of the CEP, not within the coverage itself, which invitations the query to what extent different insurance policies are prohibited, notably the place they improve however don’t contradict with the CEP,” Perkins mentioned. “On condition that, it’s doable that SDNY will take the place that sure options of its coverage, corresponding to the way it approaches conditional declination, stay regardless of the CEP as a result of they merely describe how SDNY intends to train its discretion in areas the place the CEP has left flexibility, relatively than contradicting the CEP.”
In a written Q&A with CCI, Eric Beste and Scott Hulsey, each former DOJ officers who now are companions at Barnes & Thornburg, mentioned that the DOJ’s need for one blanket CEP will certainly constrain particular person workplaces.
“SDNY could have been making an attempt to stake out floor or transfer shortly on a problem it considered as necessary, whereas Predominant Justice was centered on standardization throughout the division,” they wrote. “The March 10 coverage makes clear, nevertheless, that DOJ finally needs a single, unified framework — and that particular person workplaces can have much less room to distinguish going ahead, a minimum of on the coverage degree.”
Carrots, sticks & positive print
For all the DOJ’s years of deploying a wide range of carrots and sticks to incentivize self-reporting of misconduct, that is still a tough choice, affected by many transferring elements, consultants agreed. So whereas the brand new CEP seeks to offer unified steering, the doc is simply that — steering.
“The coverage serves as a information — not a assure,” Beste and Hulsey wrote. “Early strategic judgment nonetheless issues enormously, together with how and when to interact DOJ, how you can body the narrative and how you can sequence inside investigative steps.”
Additionally they cautioned that whereas company compliance, threat and governance professionals are intently inspecting this CEP, the company group is just not precisely the viewers and that the federal government and enterprise leaders could have completely different objectives.
“Remember that this memo is directed to prosecutors to information their efforts and doesn’t create ‘rights’ for defendants. The division’s goal is to encourage early disclosure, however this goal could not all the time be what’s greatest for a corporation.”
Perkins agreed, including that particular person truth patterns matter greater than stream charts.
“General, compliance officers shouldn’t learn the CEP as making self-reporting a straightforward or automated selection,” Perkins mentioned. “The CEP could provide significant advantages, however the choice as as to if to self-report nonetheless requires a cautious, case-specific evaluation.”
Rosen equally cautioned corporations in opposition to assuming they may have ample time to run their inside investigation.
“The difficulty that some would possibly overestimate is the period of time an organization has to decide about whether or not to reveal and attempt to get credit score for self-reporting a problem,” Rosen mentioned. “To get credit score, the self-disclosure must occur on the ‘earliest doable time,’ which for a lot of corporations could also be earlier than there may be time to totally examine and assess an allegation.”
