By: Sara Mieczkowski and Eddie Suarez | Suarez Law Firm, Tampa, FL
In this article we will outline some recent DOJ policy shifts in white-collar crime enforcement that impact the approach practitioners take to white-collar investigations.
On June 10, 2025, Matthew R. Galeotti, Head of the Criminal Division, attempted to clarify the implications of DOJ’s May 12, 2025, white-collar enforcement memo, formally titled, Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime. (Here is a link to the memo: dl).
Of particular interest to white-collar criminal defense practitioners are the purported expanded benefits to companies who voluntarily self-report, cooperate, and remediate wrongdoing. According to Mr. Galeotti, the “benefits to companies that voluntarily self-report, cooperate, and remediate have never been clearer and more certain: those companies will receive a declination, not just a ‘presumption.’” Unfortunately, Mr. Galeotti immediately watered down this apparent guarantee of declination by adding that DOJ will maintain its “discretion to deviate where there are aggravating circumstances . . . such that a declination simply is not appropriate.”
As a practical matter, white-collar criminal enforcement remains in flux. The recent statements by Mr. Galeotti, along with the substantial May 2025 revisions to the Corporate Enforcement Policy (CEP), seemed to signal more concrete incentives for companies that cooperate with investigations by suggesting a guarantee of declinations, but the landscape remains dangerously murky because DOJ still reserves the right to prosecute cooperating companies, where aggravating factors exist. This retained discretion creates uncertainty—even for entities that have made good-faith efforts to comply.
This article examines how that prosecutorial latitude affects defense strategy. More critically, it outlines how white-collar defense lawyers can help clients navigate the risks of cooperation, ensuring informed decisions in a legal climate where compliance does not guarantee non-prosecution.
The Policy Shift: From “Presumption” to “Will Decline”
A key shift in the revised CEP is its move from a “presumption of declination” to a mandatory declination for companies that meet specified criteria. Previously, even full cooperation carried only a rebuttable presumption of non-prosecution—one that could be negated by aggravating factors. Now, the policy states unequivocally that the Criminal Division “will decline” prosecution when four conditions are met: (1) voluntary self-disclosure of misconduct, (2) full cooperation with the investigation, (3) timely and appropriate remediation, and (4) absence of aggravating circumstances.
This revision is designed to increase predictability in enforcement outcomes and to incentivize early disclosure. But the policy’s promise of certainty is only as reliable as the DOJ’s subjective evaluation, especially in its assessment of “aggravating circumstances.” While the criteria are framed as clear, their application remains inherently discretionary. For defense counsel, the practical reality is this: even where clients meet all apparent benchmarks, the decision to decline prosecution rests on a prosecutor’s interpretation of both facts and severity. What appears to be a defined pathway may, in practice, shift with the government’s view of the case.
The “Near Miss” Category: A Path to Favorable NPAs
The revised CEP recognizes that not every company can achieve a textbook voluntary self-disclosure. In response, it introduces a pathway for so-called “near miss” cases. Even when disclosure isn’t timely—or the government already knows of the misconduct—or when aggravating factors exist, the company may still qualify for a Non-Prosecution Agreement (NPA).
Barring “particularly egregious or multiple aggravating circumstances,” a qualifying company can expect an NPA with a term of under three years, no monitorship, and a 75% fine reduction from the low end of the U.S. Sentencing Guidelines range. Unlike Deferred Prosecution Agreements (DPAs), NPAs are not filed in court, are generally not made public, and avoid judicial scrutiny.
An NPA is a contractual commitment: in exchange for no criminal charges, the company agrees to cooperate, admit to facts, waive statute-of-limitations defenses, remediate, and pay a fine. For defense counsel, the key takeaway is that even when declination is off the table, proactive remediation and full cooperation can still prevent an indictment.
Aggravating Circumstances: Defining the Devil in the Details
The presence or absence of “aggravating circumstances” remains a pivotal factor in corporate prosecution decisions, even under the revised CEP. Understanding what constitutes these factors and their impact is crucial for defense counsel.
The revised CEP defines “aggravating circumstances” as factors that may include: (1) the nature and seriousness of the offense; (2) the egregiousness or pervasiveness of the misconduct within the company; (3) the severity of harm caused by the misconduct; and (4) a criminal adjudication or resolution within the last five years based on similar misconduct by the entity engaged in the current misconduct. These factors align with the broader “Principles of Federal Prosecution of Business Organizations” (PFPBO), which guide federal prosecutors in determining whether to bring criminal charges against a corporation, considering elements such as the nature and seriousness of the offense, the pervasiveness of misconduct, and the history of similar wrongdoing. This definition provides defense counsel with a clearer framework for assessing a client’s risk profile and the likelihood of these factors influencing a resolution.
Analyzing the Practical Meaning of “Retained Discretion”
While the CEP highlights key factor such as voluntary self-disclosure, cooperation, remediation, and aggravating circumstances, prosecutorial discretion extends beyond them. Other critical considerations include:
- Strength of the Evidence and Trial Viability: The DOJ assesses the case’s evidentiary foundation and the likelihood of prevailing at trial.
- Pervasiveness of Misconduct: The degree to which the wrongdoing permeated the company.
- Individual Accountability: Whether prosecuting individuals sufficiently serves justice, lessening the need for corporate charges.
- Collateral Consequences: The risk of undue harm to shareholders, employees, or the public.
- Deterrent Effect: The potential for the resolution to influence broader corporate behavior.
- Victim Interests: The need to address and remedy harm to those affected.
Cooperation is a potent mitigating factor—but it is not self-executing. It’s measured against the seriousness of the offense, the scope of harm, and the broader public interest.
The DOJ’s latest guidance reinforces that cooperation requires identifying all parties involved. The standard for “full” cooperation may thus evolve during the investigation—creating what many see as moving goalposts.
For defense counsel, the implications are: manage client expectations early, prepare for expanding disclosure demands, and commit to a transparent strategy that guards privileged communications. A perceived shortfall in cooperation—even if unintentional—can erode the benefits your client seeks.
Highlighting the Inherent Tension: Cooperation vs. Exposure to Liability
The requirement for “full cooperation” mandates disclosing “all relevant, non-privileged facts known to it, including all relevant facts and evidence about all individuals involved or responsible for the” misconduct. This is a fundamental requirement for receiving any benefits under the CEP. This creates a direct conflict: the corporation’s path to leniency (declination or NPA) often necessitates providing information that could directly incriminate its own employees, officers, or directors. This tension is the crux of the strategic challenge for defense counsel.
Protecting Individuals While Cooperating Corporately
This is arguably the most challenging aspect of white-collar defense. Corporate counsel represents the entity, not individual employees. Clear Upjohn warnings must be delivered to employees during internal investigations, advising them that counsel represents the company, not them personally, and that the attorney-client privilege belongs to the company. Given the DOJ’s “first priority” on individual prosecution and its use of corporate cooperation as a “tool” for this, and the requirement to disclose facts about “all individuals involved or responsible” the potential for conflict is high. Defense counsel should implement joint defense agreements where appropriate and ethically permissible and advise individuals on their Fifth Amendment rights. Considering separate counsel for key individuals early in the process is often not just prudent, but critical. The corporation’s cooperation should not come at the expense of individual rights, and counsel must be adept at drawing the line between providing facts and waiving individual protections.
Conclusion: Adapting to a Dynamic Enforcement Environment
The DOJ’s revised Corporate Enforcement Policy represents a significant recalibration of white-collar enforcement, offering clearer, more predictable pathways to favorable outcomes for cooperating companies. However, it does not eliminate prosecutorial discretion. Instead, it reframes it, particularly around the assessment of aggravating circumstances and the determination of what constitutes “particularly egregious” conduct. White-collar defense attorneys must adapt their strategies to this dynamic environment.
Success in this evolving landscape hinges on several key imperatives: proactive and robust compliance programs, meticulous internal investigations, strategic voluntary self-disclosure when appropriate, aggressive negotiation of resolution terms, and a nuanced approach to individual accountability that balances corporate interests with individual rights. The emphasis on individual prosecution and the disfavoring of monitorships suggests a more streamlined approach to corporate resolutions, but one that still demands full transparency and genuine reform from companies. Counsel who can effectively navigate the inherent tensions between corporate cooperation and individual exposure, while leveraging the new policy’s benefits, will be best positioned to protect their clients’ most important interests.
The Suarez Law Firm: Tampa’s Trusted Criminal Defense Counsel
Based in Tampa, the Suarez Law Firm is recognized for its strategic defense of FCA and white-collar criminal matters.
Eddie Suarez can be reached at esuarez@suarezlawfirm.com
Sara Mieczkowski can be reached at sara@suarezlawfirm.com
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