Additional Author Nitin R. Nainani
On January 10, 2024, US Attorney for the Southern District of New York (“SDNY”) Damian Williams introduced a whistleblower pilot program targeting corporate crime, bribery and theft of government funds (the “SDNY Whistleblower Pilot Program”). Designed to encourage voluntary self-reporting, the program allows for individuals to receive non-prosecution agreements, if they disclose information and cooperate regarding certain non-violent offenses. Though this has been SDNY’s de facto policy, the SDNY Whistleblower Pilot Program represents a codification of the approach, reflecting the United States Department of Justice’s (“DOJ”) ongoing emphasis on self-disclosure programs and transparency.1
In announcing the program, US Attorney Williams stated: “[b]y providing clarity on the requirements and the benefits of such self-disclosure, we seek to incentivize individuals and their counsel to provide actionable and timely information. That will, in turn, help us bring more misconduct to light and better protect the communities we serve.”2 Notably, US Attorney Williams had a hand in shaping DOJ’s recent policy revisions through his role as the Chair of the Attorney General’s Advisory Committee.3
The SDNY Whistleblower Pilot Program focuses on “criminal conduct undertaken by or through public or private companies, exchanges, financial institutions, investment advisers, or investment funds involving fraud or corporate control failures or affecting market integrity, or criminal conduct involving state or local bribery or fraud relating to federal, state, or local funds.”4 These cases have traditionally been more difficult to investigate, as individuals are reluctant to come forward for fear of legal consequences for their own misconduct. In appropriate contexts, SDNY will accept an individual’s cooperation in exchange for a non-prosecution agreement, so long as certain conditions are met:
- The misconduct has not previously been made public and is not already known to the United States Attorney’s Office;
- The individual discloses the criminal conduct voluntarily, and not in response to a government inquiry or obligation to report misconduct;
- The individual is able to provide substantial assistance in the investigation and prosecution of one or more equally or more culpable persons, and is prepared to cooperate fully with the SDNY in its investigation and prosecution of the disclosed conduct;
- The individual truthfully and completely discloses all criminal conduct in which the individual has participated and of which the individual is aware;
- The individual is not (a) a federal, state, or local elected or appointed and confirmed official; (b) an official or agent of a federal investigative or law enforcement agency; (c) a person who otherwise is, or is expected to become, of major public interest; or (d) the chief executive officer or equivalent, or chief financial officer or equivalent, of a public or private company; and
- The individual has not engaged in any criminal conduct that involves the use of force or violence, any sex offense involving fraud, force, or coercion or a minor, or any offense involving terrorism or implicating national security, and does not have a previous felony conviction or a conviction of any kind for conduct involving fraud or dishonesty.5
If an individual provides information about the relevant criminal conduct, but does not meet the above-listed criteria, prosecutors can still decide to offer a non-prosecution agreement, subject to supervisory approval.6 Such a decision would hinge on questions of public interest and necessity, and would involve weighing the suitability of non-criminal sanctions and the extent to which the requirements have been met.7 SDNY’s Whistleblower Pilot Program does not currently cover those seeking to divulge information regarding violations of the Foreign Corrupt Practices Act, bribery of federal officials, federal patronage crimes, breach of federal or state campaign finance laws, or corruption of the electoral process.8
By design, the SDNY Whistleblower Pilot Program’s success relies on timely and voluntary self-disclosure, which SDNY incentivizes with the prospect of a non-prosecution agreement, as opposed to a cooperation agreement. Though this approach is not new for SDNY, formalizing and broadcasting the policy will improve awareness—a prerequisite for greater participation. Individuals are inherently more likely to self-report if they are familiar with the policy and its benefits and provisions. As announced, the program clearly specifies who and what crimes are covered by the policy, in addition to the benefits that can be earned by self-disclosure. Thus, SDNY’s Whistleblower Pilot Program should, over time, result in greater numbers of corporate criminal prosecutions. In a similar vein—and as a possible preview of what’s to come—DOJ officials have cited an increase in self-reporting, following related policy updates on individual accountability and corporate self-reporting.9
1 For an overview of recent DOJ self-disclosure and transparency policy updates, please see our Legal Updates: US DOJ Announces Major Policy Updates on Individual Accountability, Recidivism, Monitorships, and Corporate Culture; DOJ’s Criminal Division Announces Revisions to DOJ’s Corporate Enforcement Policy, Including New Paths to Potential Declinations; DOJ’s Criminal Division Announces Further Updates to DOJ Policy on Key Topics: Ephemeral Messaging, Compensation Clawbacks, and Selection of Corporate Monitors; and DOJ Announces New “Safe Harbor” for M&A Voluntary Disclosures.
2 Press Release, US Attorney’s Office, SDNY, US Attorney Williams Announces Enforcement Priorities and SDNY Whistleblower Pilot Program (Jan. 10, 2024), https://www.justice.gov/usao-sdny/pr/us-attorney-williams-announces-enforcement-priorities-and-sdny-whistleblower-pilot.
3 Press Release, US Attorney’s Office, SDNY, US Attorney Damian Williams Appointed to Chair Attorney General Merrick B. Garland’s Advisory Committee (Mar. 30, 2022), https://www.justice.gov/usao-sdny/pr/us-attorney-damian-williams-appointed-chair-attorney-general-merrick-b-garland-s.
4 The text of the SDNY Whistleblower Pilot Program is available here.
9 Mengqi Sun, DOJ Says More Companies Are Voluntarily Disclosing Possible Wrongdoing, WALL ST. J. (May 24, 2023), https://www.wsj.com/articles/doj-says-more-companies-are-voluntarily-disclosing-possible-wrongdoing-5398a842.