New York: A Litigation: White-Collar Crime & Government Investigations Overview

From Corporate Leniency to Individual Accountability: How the DOJ’s New Enforcement Framework Changes Internal Investigations

Over the past year, both the US Department of Justice and the US Attorney’s Office for the Southern District of New York (SDNY) have sought to bring greater predictability to corporate criminal enforcement. On March 10, 2026, the DOJ released its first-ever Department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy, and on February 24, 2026, the SDNY announced its own Corporate Enforcement and Voluntary Self-Disclosure and Cooperation Program for Financial Crimes. The DOJ’s department-wide Corporate Enforcement Policy and the SDNY’s voluntary self-disclosure framework share a common premise: companies that uncover misconduct should be encouraged to come forward quickly, cooperate extensively, and remediate effectively. In return, prosecutors have identified clearer routes to declinations and reduced penalties than many companies previously perceived to exist.

This new clarity regarding corporate declinations has also sharpened the focus on the prosecution of culpable individuals. Indeed, the DOJ’s policy states that incentivizing corporate self-disclosure is designed to promote timely and effective enforcement of criminal laws, including holding culpable individuals accountable, and the SDNY has described its own program as building on “a focus on individual accountability”. In practical terms, the government increasingly views corporations not only as potential subjects of enforcement actions, but also as critical sources of evidence in cases against individuals.

Recent enforcement actions demonstrate how this approach operates in practice. In a matter involving a French company, the DOJ declined prosecution of the corporation after self-disclosure and cooperation, while pursuing charges against individual employees allegedly responsible for the misconduct. The outcome illustrates the government’s broader vision: a cooperative company may obtain significant benefits, while prosecutors continue to pursue individual accountability where they believe the facts support doing so.

But the same cooperation that may protect the company can facilitate the identification and prosecution of responsible individuals. That dynamic has important implications for internal investigations, particularly where facts remain incomplete, and corporate and employee interests begin to diverge.

Where tensions arise

The tension will be familiar to many legal departments. A corporation has legitimate interest in uncovering misconduct, satisfying compliance obligations, and obtaining cooperation credit, while employees may have differing interests where criminal or regulatory exposure is possible.

These tensions first emerge during the earliest stages of investigation. Companies seeking to preserve the option of self-disclosure must often make significant decisions before all the facts have been developed. Questions arise concerning how much evidence is sufficient to identify a potential wrongdoer, whether disclosure should occur before key witness interviews are complete, and how preliminary findings should be characterized when they remain uncertain.

Witness interviews present another important pressure point. Historically, interviews were often viewed primarily as fact-gathering exercises. But they can simultaneously serve as mechanisms for understanding events, developing evidence, and identifying individuals who could become subjects of government scrutiny. This creates heightened importance for Upjohn warnings (that corporate lawyers represent the company, not the individual), interview protocols, and consideration of separate counsel.

Similarly, many white-collar investigations ultimately turn on questions of intent, knowledge, and supervisory responsibility. To obtain cooperation credit, companies frequently seek to establish who knew what, when they knew it, and how the information moved through reporting channels. Those same issues often form the foundation of individual cases pursued by prosecutors. The company may therefore find itself developing evidence that advances both corporate cooperation objectives and potential individual liability theories.

Even decisions regarding presentations to the government become more complicated. Prosecutors generally seek facts rather than privileged communications, but cooperation often requires companies to provide detailed factual narratives regarding investigative findings. Determining how to characterize disputed facts, conflicting witness accounts and tentative conclusions becomes increasingly consequential when individuals may later face scrutiny based on those presentations.

Practical implications

Of course, businesses cannot conclude, based on the above, that they should cooperate less. Given the clarified path to a declination, cooperation and self-disclosure will in many instances represent the most prudent route. Instead, companies should recognize that internal investigations increasingly operate in an environment where the interests of the corporation and individual employees may diverge earlier than in the past. And that reality should influence investigation design from the outset.

• First, companies should maintain a disciplined distinction between fact-finding and advocacy. The desire to quickly develop a cooperation narrative can create incentives to reach conclusions prematurely. Investigation teams should focus first on collecting evidence, identifying uncertainties, and distinguishing established facts from assumptions. Early conclusions regarding intent or culpability can prove difficult to reverse if subsequent evidence points in a different direction.

• Second, witness interviews warrant renewed attention. Upjohn warnings should be delivered clearly, and repeated as needed so that the witness genuinely understands, before substantive questioning begins, that counsel represents the company and that the company alone controls the privilege. Interviews are best led by counsel and supported by a second attorney or note-taker rather than conducted one-on-one. The interview should be memorialized in a non-verbatim written summary that captures counsel’s mental impressions and legal conclusions (and is therefore an attorney-client privileged document), rather than in a verbatim transcript or recording (which would not likely be attorney-client privileged). Because these interviews increasingly double as the government’s roadmap to individual conduct, the manner in which they are conducted and documented deserves as much care as the facts they are designed to uncover.

• Third, companies should consider potential conflicts earlier. Historically, separate counsel frequently became necessary only after clear evidence of individual exposure emerged. Under the current enforcement framework, businesses should evaluate earlier whether executives, supervisors, compliance personnel, or others may require separate counsel – and whether applicable policies and contracts permit timely retention of separate counsel. Early consideration of these issues can enhance fairness, preserve credibility, and reduce later challenges to investigative processes.

• Fourth, factual presentations to prosecutors must be carefully calibrated. Companies maximize credibility when they distinguish facts from inferences, identify areas of uncertainty, and avoid overstating conclusions regarding intent. Prosecutors may ultimately draw their own conclusions regarding culpability, but companies should be cautious about presenting tentative judgments as established facts simply to demonstrate cooperation.

• Fifth, boards should become more actively involved in overseeing disclosure decisions. Self-disclosure is no longer merely a legal determination regarding enforcement risk. It is increasingly a governance decision that may affect employees, senior management, and corporate culture. Boards should understand not only the potential benefits of disclosure, but also the degree of confidence supporting investigative findings and the safeguards in place to ensure fairness.

• Finally, companies should revisit investigation protocols before a crisis occurs. Escalation procedures, interview practices, documentation standards, board reporting requirements, and criteria for retaining separate counsel are all easier to address before an incident arises than in the middle of a fast-moving investigation.

Looking ahead

The DOJ’s new policies present an invitation for businesses to ensure that their investigation protocols are calibrated to maximize cooperation credit while preserving accuracy, fairness and credibility in the identification of individual wrongdoing. Organizations with properly calibrated protocols will be best positioned to navigate the opportunities and risks created by the government’s evolving enforcement framework. As prosecutors continue to pair corporate leniency with enhanced focus on individual accountability, careful investigation design may become just as important as the disclosure decision itself.