Editor’s Note: PCCE has been following the Trump Administration’s new approach to corporate criminal enforcement. In this post, which is the second in a 2-part series, PCCE invited leading white collar practitioners to discuss the new enforcement priorities and revisions to the DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) outlined by Matthew Galeotti, Head of the Criminal Division for the DOJ, in a speech at the SIFMA Anti-Money Laundering and Financial Crimes Conference on May 12, 2025.
Left to right: Robertson Park, Elizabeth Roper, and Maria Piontkovska (photos courtesy of the authors)
I Would Not Advise Being a Test Case
The Criminal Division’s announcement of its proposed update to corporate enforcement policies presents an interesting conundrum for internal counsel, and for external counsel advising clients in some areas — particularly financial fraud and bribery. Indeed, I must respectfully disagree with many of the client alerts now flooding our in-boxes, which profess that White collar enforcement is alive and well. The proposed revisions certainly revive the debate over the value and efficacy of clients making a voluntary disclosure, and it is well that Criminal Division has broken their silence. But while the proposal potentially elevates the importance and value of voluntary disclosures, there is very limited and often oblique mention of the more traditional white collar work streams. This — coupled with the reassignment and termination of many seasoned and skilled Fraud and White-Collar prosecutors and the diversion of FBI and other white collar investigative resources — may well undercut the desired impact of the new guidance.
It is certainly safe to conclude that the stated investigative and enforcement priorities of the new DOJ Administration — immigration, cartels and transnational criminal organizations, and broad concepts like “Fraud, Waste and Abuse” are unlikely to elicit many voluntary disclosures. Further, one may ask, are there sufficient DOJ attorney and associated investigative resources to manage and address any increase in voluntary disclosures, of whatever type?
I have spoken previously to colleagues and clients about my concern that there needs to be an “inbox” and people managing it to address and process voluntary disclosures. Currently, this author does not believe either exists. My advice to corporates remains — focus internally and use the current uncertainty to address internal processes and deployment of internal legal and compliance resources. The proposed voluntary disclosure incentives — however attractive on the surface — require time to assess. I would not advise being a test case.
Robertson Park is a Partner at Davis Wright Tremaine LLP.
The End of Compliance Monitorships?
by Elizabeth Roper and Maria Piontkovska
On May 12, DOJ issued a number of updated corporate enforcement policy documents, including a revised Memorandum on Selection of Monitors in Criminal Division Matters (“the Monitorships Memorandum”). The revisions follow DOJ’s decision to put on pause the imposition of monitorships and review all of Criminal Division’s active compliance monitorships. In general, the revised Monitorships Memorandum reflects an overall disfavoring of corporate compliance monitors by the current Administration and has the white collar bar questioning whether any will be imposed. The likely answer is that compliance monitors will still be imposed, albeit in more limited circumstances and with strings attached.
DOJ does appear to want to retain the option of imposing a compliance monitor in cases that align with its broader enforcement priorities (e.g., cases that involve trade or customs fraud, cases involving bribery or money laundering that harm US competitiveness, and US national interest or security). The likelihood of a monitor being imposed in cases related to misconduct that does not fit within one of the categories of offences deemed to “significantly impact US interests” is substantially reduced. Where monitors are imposed, DOJ will endeavor to limit the scope, cost and business disruption caused by those monitorships. Although monitorships were always required to be appropriately scoped, the Monitorship Memorandum goes further, imposing hourly fee caps and stringent budgetary requirements. Whether this impacts the talent pool of prospective monitors remains to be seen. The revised Memorandum also mandates regular tripartite meetings between the company, the monitor, and DOJ. These additional guardrails underscore DOJ’s position that monitorships should be reserved for instances of serious misconduct that is likely to occur again and where the additional costs to the business of a monitorship are outweighed by the benefits. They also may signal a shift towards greater financial oversight, transparency, and engagement throughout the monitorship process. Finally, for the first time ever, DOJ suggested that a company’s voluntary engagement of third-party consultants, auditors, and other experts in connection with remediation related efforts may obviate the need for a monitor.
In practice, the policy changes discussed above provide companies that find themselves in resolution negotiations with DOJ with additional potential avenues and arguments against the imposition of a monitor. For example, a company could argue that a compliance monitorship will be overly burdensome and unnecessary from a US national security perspective, or that it has voluntarily engaged outside counsel to devise and implement remediation measures directed at addressing the root cause of the violation. Companies also may have a greater role in recommending and choosing monitors, as well as greater control over the related costs.
Elizabeth Roper and Maria Piontkovska are Partners at Baker McKenzie.
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