Corporate Counsel Quotes Jonathan Poling on DOJ’s New Self-Disclosure Policy

Akin Gump international trade partner Jonathan Poling has been quoted in the Corporate Counsel article “What Companies Need to Know About the DOJ’s New Self-Disclosure Policy” regarding a new stance by the Justice Department on taking enforcement action against companies that voluntarily disclose violations of U.S. export control and sanctions laws.

According to the article, the revised policy now applies to financial institutions and offers companies a clearer incentive to self-report violations, which Poling said is likely designed, “to try to increase the participation of companies in the [DOJ’s] voluntary disclosure program.”

Among the changes, the article reports, is a provision giving companies the presumption of being entitled to a non-prosecution agreement and no fine if they meet certain criteria, such as reporting a violation as soon as possible after becoming aware of the offense. The updated policy, the article reports, also states that certain aggravating factors, such as repeated violations and upper management being knowingly involved in criminal conduct, affect a firm’s eligibility for self-reporting benefits.

“A lot of times, disclosures will include at least one type of aggravating factor. It’s uncertain yet how the DOJ is going to treat aggravating factors under this program as a way of excluding you from the benefit of getting a non-prosecution agreement,” Poling said. “And if you do have one or more aggravating factors, companies may be wondering where there’s a real upside to going into the disclosure program,” he added.

Meanwhile, for the first time, financial institutions are included in the policy and can take advantage of the benefits of self-disclosure, “but there’s an open question about how enforcement is going to align between the [DOJ’s] National Security Division and financial institutions,” Poling pointed out.