On May 12, 2025, the Department of Justice (DOJ) Criminal Division announced significant changes in its policies on investigating and prosecuting white collar crime. In its memo announcing the new policies, and in subsequent statements, the agency signaled its intent to refine enforcement priorities, encourage self-disclosure, and increase efficiency in investigations. In the following guest post, Michael W. Peregrine and Ashley Hoff of the McDermott Will & Emery law firm review the agency’s new policies and consider the policies’ potential director and officer liability implications. I would like to thank Michael and Ashley for allowing me to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Michael and Ashley’s article.
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Until recently, officers and directors may have believed that they and their companies had little to fear from the Trump Administration concerning corporate fraud enforcement. The aggressive pursuit of white collar crime under the Biden Department of Justice seemed only a memory, as relaxed policies and executive orders of early 2025 foretold a more lenient approach to enforcement under the Trump DOJ. The corporate compliance environment was poised to suffer a setback in emphasis.
But those projections changed with the May 12 release of the DOJ Criminal Division’s White Collar Enforcement Plan (“the Plan”). The Plan reflects important policy shifts and redirects the enforcement priorities of the Administration to “the most significant threats facing our country”. At the same time, the Plan reflects an unequivocal endorsement of individual accountability and fraud enforcement, as well as the importance of effective compliance programs and the perceived benefits of voluntary self-disclosure.
The policy themes of the Plan have been outlined in May 13 and June 10 speeches by Matthew R. Galeotti, Chief of the DOJ’s Criminal Division.
Nevertheless, lingering perceptions concerning the breadth of the focus on white collar crime may prompt boards of directors to revisit the application of their Caremark obligations for the company’s central compliance risks.
The Policy Shift. By the new Plan, the Criminal Division “is turning a new page on white-collar and corporate enforcement”, according to Mr. Galeotti. Henceforth, the Division’s primary focus will be on investigating and prosecuting corporate crime in areas that are determined to have the greatest impact on protecting U.S. citizens and promoting U.S. interests.
These areas include, but are not limited to, cartels and transnational criminal organizations (“TCOs”), human smuggling operations, the flow of fentanyl and other dangerous drugs, child predators, and violent criminals.
Importantly, they also include fraud perpetrated against individuals as taxpayers, investors, and as recipients of government services. This, to the extent such activity harms the public, damages national security, weakens the integrity of the markets, ‘takes advantage’ of government programs, and allows dishonest actors to enrich themselves through waste, fraud, and abuse.
Of particular note is Mr. Galeotti’s observation that prior DOJ enforcement efforts may have, by their substantial costs and uncertain length, deterred companies from cooperating with the Department and diverted the Department’s resources away from addressing these more significant national threats. To that end, the Plan seeks to incentivize companies “to come forward, come clean, reform, and cooperate with the government in efficient investigations and prosecutions of the most culpable actors”.
The Specific Policy Changes
The Plan directs Criminal Division attorneys to be guided by three “core tenets”: (i) Focus; (ii) Fairness; and (iii) Efficiency.
As to Focus: The Criminal Division will now prioritize its investigative and prosecution efforts on the most urgent criminal threats to the country. The Plan identifies ten specific high impact areas of white collar crimes, beginning with waste, fraud and abuse (e.g., health care fraud, federal program, and procurement fraud) that harm the public fisc.
The Plan also expands the Division’s existing whistleblower pilot program to add six specific priority areas, including procurement and federal program fraud; trade, tariff, and customs fraud; immigration enforcement; violations involving sanctions or material support of foreign terrorist organizations; and violations that facilitate the unlawful activities of cartels and other TCOs.
As to Fairness: The Plan revises the Division’s Corporate Enforcement and Voluntary Self Disclosure Policy (“CEP”), to clarify that additional benefits are available to companies that self-disclose and cooperate, including shorter terms. DOJ intends to make the CEP’s core components more easily understandable to corporate representatives charged with responding to misconduct. Those key components include clear paths for potential declination, the available fine reductions for a company’s cooperation and remediation, and the relevant factors that determine the contours of a corporate resolution.
The government’s key message is that self-disclosure is key to receiving “the most generous benefits the Criminal Division can offer”. Companies that voluntarily self-disclose and satisfy other criteria will receive a declination, rather than simply the presumption of a declination. Furthermore, companies that self-report, fully cooperate and remediate, but otherwise don’t qualify for a declination under the revised CEP will still have the opportunity to receive a non-prosecution agreement with a reduced fine and a three-year cap.
In addition, the Criminal Division’s Fraud and Money Laundering and Asset Recovery Sections have been directed to review all existing agreements to evaluate, based on certain factors, the possibility of their earlier termination. Future corporate resolutions with companies that have cooperated and remediated will, generally, be subject to a term of no more than three years.
As to Efficiency: To protect against investigations that can linger for years (often without meaningful progress), the Plan directs prosecutors “to move expeditiously to investigate cases and make charging decisions…[to] ensure that they do not linger and are swiftly concluded”. The Plan also commits DOJ to reviewing all existing monitorships to determine whether each monitor is still needed.
The Caremark Implications: The Plan provides a series of both challenges and opportunities to corporate officers and directors as they seek to effect their oversight obligations over the central compliance risks of the organization.
The challenges are at least five-fold. First, corporate leadership must overcome the presumption, however inaccurate, that corporate fraud enforcement has been relaxed under the Trump Administration. This task is made difficult not only by Administration actions before the Plan’s release, but also by statements in the Plan and by Criminal Division Chief Galeotti that can be interpreted as critical of the economic and operating costs to companies from Biden-era investigations.
Second, the advantages of self-disclosure will likely only be available to companies with an effective compliance program in place, ready to identify red flags of risk. Boards and their audit committees should also be prepared to make prompt but thoughtful decisions on voluntary disclosure when presented with material compliance concerns.
Third, in the event of a DOJ investigation, the company and its leadership must be sufficiently organized to keep up with the anticipated swiftness of the government’s efforts. In his June 10 speech, Mr. Galeotti made clear DOJ’s expectations of efficient responses from companies to government requests.
Fourth, the Plan’s endorsement of individual accountability as an enforcement priority raises the potential for management – board of directors conflict in the event that voluntary self-disclosure or similar cooperation is a possibility.
Fifth, the board should consult with its white collar counsel to more fully understand (and provide direction to management concerning) the implications of Mr. Galeotti’s warning that defense counsel be “honest brokers” when appealing decisions of DOJ trial attorneys and Assistant U.S. Attorneys.
The compliance challenges notwithstanding, the compliance opportunities are also multiple. First, the Plan clearly places a high priority on white collar criminal enforcement. Mr. Galeotti’s public comments words can be used effectively in internal company compliance messaging. Second, the ability to pursue a voluntary self-disclosure will likely be grounded in the effectiveness of the compliance program. Third, the investigative priority on waste, fraud and abuse in government programs should incentivize many companies to improve their internal contracting review programming. Finally, the various changes implemented by the Plan underscore the need for robust board oversight of compliance, and participation in the decision-making for voluntary self-disclosure and other forms of corporate resolutions.
Because the new Corporate Enforcement Plan relates to both organizational white collar criminal enforcement and satisfaction of officer and director standards of conduct, it is worthy of a leadership-focused educational briefing from the chief legal officer and chief compliance officer.
About the Authors
Mr. Peregrine and Ms. Hoff are corporate governance and white collar, respectively, attorneys with McDermott Will & Emery. They thank their colleague Ted Diskant for his many contributions to this post.