DOJ Updates Corporate Compliance Policy in National Security Context, Introduces Whistleblower Incentives

The National Security Division (NSD) of the U.S. Department of Justice (DOJ) has unveiled significant updates to its Enforcement Policy for Business Organizations, emphasizing the intersection between U.S. national security laws and corporate compliance expectations. Released on March 7, 2024, the updated policy, alongside recent speeches by senior DOJ officials, signals a strategic shift in corporate criminal enforcement, particularly concerning violations of U.S. export controls and sanctions laws.

Key aspects of the updated NSD Enforcement Policy include enhancements to voluntary self-disclosure (VSD) programs, with a particular focus on mergers and acquisitions. The policy outlines criteria for determining appropriate resolutions for organizations disclosing misconduct in export control and sanctions matters, underscoring the importance of robust compliance controls, timely self-disclosures, cooperation with NSD, and remedial measures.

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Senior DOJ officials, including Deputy Attorney General Monaco and Assistant Attorney General Olsen, have emphasized the critical link between corporate crime and national security. They announced updates to the Department's corporate criminal enforcement policies, including incentives for whistleblowers reporting corporate wrongdoing.

A new safe harbor policy for VSDs made in connection with mergers and acquisitions has been introduced, providing additional protections for acquiring companies. Under this policy, acquirers disclosing potential violations of U.S. national security laws by acquired entities may qualify for protections such as a presumption against prosecution, no requirement for criminal fines or asset forfeitures, and considerations for recidivism history.

The NSD's increased focus on corporate crime is supported by additional resources, with a notable increase in prosecutors dedicated to violations of sanctions, export control, and foreign agent laws. This emphasis underscores the DOJ's commitment to combating national security-related corporate crime comprehensively.

In addition to the updated Enforcement Policy, the DOJ plans to implement a whistleblower incentives program aimed at cases where whistleblowers are not eligible for payments from existing government programs. This program, scheduled for launch later this year, reflects the DOJ's efforts to fill gaps in the federal whistleblower framework and encourage reporting of corporate misconduct affecting national security.

The NSD Enforcement Policy's expansion to include other U.S. national security laws, such as the Foreign Agents Registration Act and laws prohibiting terrorist financing, demonstrates the DOJ's holistic approach to investigating and prosecuting national security crimes.

Overall, these developments represent a significant shift in corporate compliance and enforcement strategy under the Biden administration, signaling a heightened focus on protecting U.S. national security interests while promoting corporate accountability and transparency.