If you’re the head of a company or its finance chief, you won’t be able to enter into a non-prosecution agreement with the Department of Justice if you come forward with information that the company is engaging in misconduct, the agency says in a self-disclosure pilot program policy document it released April 15. 

“The reporting individual [to be eligible] is not the Chief Executive Officer (or equivalent) or Chief Financial Officer (or equivalent) of a public or private company or is not the organizer/leader of the scheme,” the agency says in the document. 

The agency has been talking up the pilot program for months as part of its broader effort to encourage insiders to come forward if they think the company is engaging in misconduct.

The pilot takes what the Southern District of New York has been doing since January and expands it into a nationwide program. The pilot will become a permanent program if it proves to be effective. 

“The Criminal Division will collect anonymized statistical data about relevant disclosures, for the purposes of determining whether to extend, modify, or end the Pilot Program,” the agency says.

NPA criteria

In-house counsel and white collar crime attorneys familiar with the agency’s efforts in the past few years to encourage self-reporting likely won’t find surprises in the pilot.

To have a chance to enter into an NPA, you have to start with a relatively clean record. That means no history of violence or making threats or engaging in sexual misconduct and no previous felony or other conviction involving fraud or dishonesty. 

When you come forward, it has to be of your own accord with non-public information before the agency knows what’s going on and you have to be prepared to work with the agency as it investigates the allegations.  

If you’ve been part of the misconduct, you have to return any ill-gotten money you’ve made and pay “any applicable victim compensation, restitution, forfeiture, or disgorgement.” 

The agency is interested in serious crimes — those that relate to the integrity of financial markets and involve public or private companies with at least 50 employees. It’s also singling out crimes that involve corruption, both foreign and domestic, and those involving financial institutions and in the healthcare space.

Insiders concerned they wouldn’t meet all of the criteria might still get an NPA if they come forward. 

“Criminal Division prosecutors retain discretion to offer an NPA to individuals in appropriate circumstances,” the agency says. That includes “individuals [who] come forward pursuant to the Pilot Program but the criteria … are not met in full.”

The agency invites people who want to come forward to email it at [email protected].