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On November 22, 2024, Principal Deputy Assistant Attorney General Nicole Argentieri recapped the changes made during the Biden Administration in enforcement policies and announced a few new ones. To better understand what this all means, we spoke with Daniel Kahn (LinkedIn) , partner at Davis Polk, and himself a veteran of the DOJ.
There were a number of meaningful changes during the last few years, he noted. Most notably the voluntary disclosure program was significantly expanded, with companies with aggravating circumstances now able to still have the possibility of a declination. There is a catch, though, the bar for cooperation has been raised. The organization must have disclosed promptly, engaged in extraordinary cooperation and remediation and have had an effective compliance program at the time of the incident.
A new change, just announced, is the addition of what we referred to in the podcast as “clawforwards” in addition to clawbacks. Organizations are expected to not pay bonuses to employees involved in suspected wrongdoing.
Perhaps the greatest change just announced is a difference in how the DOJ handles self-disclosures. In the past companies that did not have a perfect self-disclosure might find themselves a bit stranded. Now the DOJ is recognizing good faith efforts even when the voluntary disclosure may not have been as timely as it could have been.
Listen in to learn more and to hear what he says companies should do with an upcoming change in administration.