Aisling O’Shea, Co-Head of S&C's FCPA and Anti-Corruption Group and a member of the Criminal Defense & Investigations Group, spoke to Bloomberg Law about the DOJ's new guidance on corporate self-disclosure and how competing policies from local U.S. Attorneys’ offices can complicate decision making.
The DOJ’s January policy revision outlined how even companies with aggravating circumstances can earn a declination by voluntarily disclosing misconduct to the Criminal Division in Washington, D.C. A month later, U.S. attorney's offices nationwide issued their own guidelines to encourage self-disclosure, which partially conflict with the DOJ’s policy update by providing a presumption of a no-guilty plea, instead of a declination. Corporations that decide to approach their local U.S. attorney’s office instead of Main Justice may face harsher resolutions, such as deferred prosecution agreements. However, defense counsel relationships with a local U.S. attorney’s office and the office’s experience prosecuting corporate crime inserts another factor into the decision.
Decisions on voluntary disclosures “are going to be highly case by case,” said Aisling. “So I would caution against a blanket presumption that you should always go to a particular component.”
Read “Location Drives Tough Calls on Confessing Corporate Crime to DOJ.”