To Self-Report or Not to Self-Report: DOJ’s New ‘Safe Harbor’ Policy Tries to Answer the Question for M&A Cases

On February 8, 2024, Vinson & Elkins partners Craig Seebald and Fry Wernick, and Counsel Brian Howard presented a program entitled “To Self-Report or Not to Self-Report: With New M&A Safe Harbor Policy, DOJ Tries to Answer the Question.” More than 230 people registered to hear the team speak on this critical subject. The recording of this program, can be viewed below.

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The presenters aimed to answer whether companies should self-report when they discover potential criminal conduct within their ranks, during or after a merger or acquisition. They also discussed how the government’s recent changes to its self-reporting incentives and how the Department of Justice now would likely treat these self-reporting companies and the mitigating factors and steps that might provide leniency.

According to panelists, a central tenant of DOJ’s enforcement policy is to punish wrongdoing by individuals, especially if a company’s leadership or executives have done something illegal. They want to hold wrong-doers accountable. Yet, on the other hand, there is a recognition, particularly in the international and transactional space, that the DOJ can’t be everywhere all the time. They need to rely on companies to self-police and continually modify their policies to try and strike the right balance between carrots and sticks.

Fry remarked that, when advising companies, especially post-acquisition, a pivotal factor to consider is the matter of timing. The DOJ has clarified that there’s now a written presumption that self-reports should be made within six months of closing, particularly if a company wants to get credit for self-reporting.

There is also now a healthy recognition by DOJ that, in the pre-acquisition period, a company will only obtain limited information about the company’s operations. However, DOJ now expects companies to conduct robust and aggressive post-acquisition due diligence to make substantial progress toward integrating operations and discovering whether the acquired asset or company had committed violations of the law.  DOJ now gives acquiring companies six months to discover whether there are issues or potential criminal conduct. If so, and if a company wants to avail itself of the new incentives that DOJ is making available, then the company will be required to self-report the misconduct to the relevant DOJ enforcement agency, and the company will be given one year, or up to 18 months after closing, to fully remediate and fix those issues, including termination or other disciplinary action against responsible employees and cooperating with DOJ’s investigation into culpable individuals, and taking best efforts to ensure that the same problems don’t happen again.

The need for your company to move aggressively post-closing to get your arms around this is vital if you want to avail yourself of the benefits of the new policy.

Not only does self-reporting need to be timely, but the reporting cannot be provided with the expectation of leniency if the government already knows about the problem. The DOJ will not give you credit for self-reporting on something that either they already know about or if it is an issue about to be published in the press.

Self-reporting also doesn’t absolve you doing the hard work, says Fry. “If you’re going in there thinking I’m going to self-report, wipe my hands and let the government do their job, you’re wrong.”

The extensive nature of investigations is that, even when a company self-reports, the government will have numerous questions for the company, which will take form in voluminous document and interview requests. They will not simply take your word for whatever you’re saying. They will conduct their own investigation and may even ask you to provide access to foreign witnesses and evidence. For international operations, expect to navigate thorny data privacy laws, HR, and privacy issues, as well.

Craig points out that, while these new changes can be put into context, this stems from a speech that Deputy Attorney General Monaco gave in which she announced the policy. It has not been reduced to black and white. There still may be opportunities for changes to be made.

Craig said there needs to be more guidance on how the antitrust division will harmonize their traditional leniency policy with the newer policies. Still, it is something that he and others at the firm are watching very closely.

For more information, Fry, Craig and Brian have also written materials available, which they can share with you. Feel free to email Fry at [email protected], Craig at [email protected] and Brian at [email protected].

This presentation was recorded and current as of February 8, 2024. Content viewed after this date may no longer be current.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.