Critical Steps to Take Now: a Practical Guide for Corporate Clients After the DOJ Policy Shift

1. Immediate Legal Hold and Preservation: The 120-Day Clock Has Already Started

Under the DOJ’s revised Corporate Enforcement Policy, effective as of January 2023, the presumption of a declination for voluntary self-disclosure now requires that you report the misconduct "within a reasonably prompt time" after becoming aware of it—which the DOJ has operationalized as 120 days. In my 25 years as a federal prosecutor, I saw too many companies waste the first month debating whether to engage counsel; that delay alone can forfeit the presumption. You must issue a comprehensive legal hold today, covering all custodians in the business unit where the conduct occurred, and extending to any parent company personnel who may have supervised or approved the relevant transactions. The hold must explicitly reference the preservation of Slack messages, Teams chats, and ephemeral messaging apps, because the DOJ’s Evaluation of Corporate Compliance Programs guidance now treats failure to preserve such communications as a presumptive aggravating factor. Do not rely on your standard IT retention policy; a litigation hold is a distinct legal instrument that overrides routine deletion schedules. Finally, certify in writing to all custodians that the hold is active and that any violation will be reported to the government as obstruction of justice under 18 U.S.C. § 1519.

2. Conduct a Privileged Root-Cause Investigation Under the Revised Sentencing Guidelines

Section 8B2.1 of the U.S. Sentencing Guidelines was amended in November 2023 to require that companies demonstrate not just a compliance program, but a "culture of compliance" that is "promoted and enforced" by senior leadership. In my experience, the DOJ’s Fraud Section now expects your internal investigation to go beyond identifying who did what; it demands a root-cause analysis that answers why the controls failed and what systemic changes will prevent recurrence. You must engage outside counsel—not in-house legal—to conduct this investigation under the attorney-client privilege and the work-product doctrine, because the government will scrutinize whether your findings are genuinely independent. The investigation should include interviews of at least three levels of management below the C-suite, and you must preserve all interview memoranda (even if privileged) because the DOJ may request a privilege waiver as part of cooperation credit. Document every remedial measure you take, including termination of involved employees, clawback of compensation under your corporate clawback policy, and enhancements to your internal audit protocols. Critically, you must complete this investigation before the 120-day self-disclosure deadline, because the DOJ will condition the declination presumption on your providing a "complete and thorough" factual report at the time of disclosure.

3. Assess Your Eligibility for the DOJ’s New "Monitor-Free" Path

The Monaco Memo shifted the burden onto companies to prove that a monitor is unnecessary, and the DOJ now considers three factors: whether the misconduct was "pervasive," whether the company has a "history of similar misconduct" at any global affiliate, and whether the compliance program is "effective and tested." In my 25 years as a federal prosecutor, I recall that the DOJ historically deferred to companies’ self-assessments of their compliance programs; that deference is gone. You must now conduct a mock monitor assessment—using the DOJ’s own Evaluation of Corporate Compliance Programs checklist—and identify any gaps in your reporting structure, your whistleblower protections, and your third-party due diligence. If your company has had any prior DOJ or SEC resolution in the last five years, even in a different business line or foreign subsidiary, you must proactively address that history in your initial submission to the government. I advise clients to voluntarily agree to a 12-month self-reporting period to the DOJ, complete with quarterly compliance certifications from the CEO and CFO, as a way to preempt a court-appointed monitor. Remember that the DOJ can impose a monitor even without a guilty plea if your cooperation agreement contains a compliance cooperation provision; you must negotiate the scope of any monitoring upfront.

4. Prepare for Individual Accountability: The DOJ Will Demand Names

The 2023 revisions to the Justice Manual, specifically §9-28.700, now require that as part of any cooperation credit, the company must identify "all individuals who were involved in the misconduct, regardless of their position, status, or seniority." In my years as a federal prosecutor, I never saw a policy that so explicitly eliminates the "substantial assistance" standard for individuals; today, if you hide a mid-level manager, you lose all cooperation credit. You must map the entire chain of command from the transaction-level employee up to the approving executive, and you must provide the government with the factual basis for each person’s involvement, including documents and interview summaries. Do not condition your cooperation on the government agreeing not to prosecute certain individuals; that is now a per se disqualifying factor under the policy. Instead, you should prepare a "culpability matrix" that separates willful actors from negligent ones, because the DOJ will consider your assessment of individual culpability when deciding whether to impose a corporate guilty plea. Finally, ensure that your board of directors has been briefed on the potential for individual prosecutions of executives, because under the Yates Memo principles still embedded in the Justice Manual, the DOJ will expect the company to waive privilege for all factual communications regarding those individuals.

If your company is facing a potential criminal investigation or has just discovered misconduct that may trigger disclosure obligations under the DOJ’s new policies, you need experienced counsel immediately. In my 25 years as a federal prosecutor, I have handled hundreds of corporate investigations and negotiated resolutions with the Fraud Section, the Antitrust Division, and U.S. Attorney’s Offices nationwide. Contact our firm today for a confidential, privilege-protected consultation. We will assess your exposure, develop a disclosure strategy, and guide you through every step of the DOJ’s enforcement process. Do not wait until the 120-day clock expires—call us now.