Whistling the Same Tune: Six U.S. Attorney’s Offices Join SDNY and NDCA in Launching Their Own Whistleblower Non-Prosecution Pilot Programs

The Department of Justice (DOJ) and individual U.S. Attorney’s Offices continue to roll out new policies aimed at encouraging individuals and companies to self-report possible corporate criminal activity and to cooperate fully with government investigators. In February and March 2024, U.S. Attorney’s Offices for the Southern District of New York (SDNY) and the Northern District of California (NDCA), respectively, launched whistleblower pilot programs. In April 2024, DOJ’s Criminal Division issued its nationwide Pilot Program on Voluntary Self-Disclosures for Individuals, and in August 2024, DOJ launched its highly anticipated corporate whistleblower awards program. Now, the U.S. Attorney’s Offices for the District of New Jersey, Eastern District of Virginia, District of Columbia, Southern District of Florida, Eastern District of New York, and Northern District of Illinois are following suit by launching their own Whistleblower Non-Prosecution Pilot Programs.

All the programs are similar, but there are slight differences. The Eastern District of Virginia, District of Columbia, and Southern District of Florida programs only apply to disclosures regarding criminal conduct undertaken by or through companies, exchanges, financial institutions, investment advisers, or investment funds involving fraud, corporate control failures, or affecting market integrity, as well as conduct involving state or local bribery or fraud relating to government funds. The Eastern District of New York program covers these same areas, but also applies more broadly to “criminal conduct undertaken by two or more individuals,” intellectual property theft, obstruction of justice, perjury, false statements, and, in certain situations, money laundering. The District of New Jersey program also applies more broadly to generally cover “criminal conduct” but “encourages the disclosure of information including, but not limited to, bribery, fraud, crimes by healthcare providers, corporate control failures, civil rights violations, and matters affecting market integrity.” Finally, the Northern District of Illinois program is a bit more amorphous, noting that the district is “home to many publicly traded and privately owned businesses in addition to numerous federal, state, and local government entities. The purpose of this pilot program is to encourage and incentivize individuals to report wrongdoing in and/or through those organizations that is previously unknown without fear of criminal prosecution for doing so. The program is geared toward individuals who have participated in and have knowledge of otherwise unknown criminal wrongdoing by virtue of their employment.”

These programs appear to be modeled after the SDNY program and are similar to the Criminal Division’s April 2024 Pilot Program. But there are differences. The Criminal Division policy applies nationwide, while the policies of the individual U.S. Attorney’s Offices are limited to their geographic jurisdictions. The Criminal Division policy also has a broader scope in terms of applicable violations, including violations related to financial institutions, financial markets, foreign corruption and bribery, healthcare fraud and kickbacks, federal contracting fraud, and domestic bribery and kickbacks to public officials. By contrast, the programs for the U.S. Attorney’s Offices, except the Eastern District of New York and Northern District of Illinois, affirmatively carve out Foreign Corrupt Practices Act violations, bribery of federal officials, or violations of campaign finance, tax, or environmental laws. These carve outs likely apply to the Eastern District of New York and Northern District of Illinois too. The Eastern District of New York notes that its policy does not apply to “individuals who provide information regarding violations subject to approval requirements by other DOJ components under rules, regulations, or procedures.”

The U.S. Attorney’s Offices’ programs are also different from DOJ’s corporate whistleblower awards program, which we addressed in our August Advisory. Unlike DOJ’s whistleblower awards program, the U.S. Attorney’s Offices allow individuals who actively participated in criminal activity and face criminal liability to participate. DOJ’s awards program also encourages whistleblowers through the promise of potential monetary awards, while the U.S. Attorney’s Offices incentivize whistleblowers with potential non-prosecution agreements.

The announcements by these six U.S. Attorney’s Offices further cement DOJ’s focus on encouraging companies and individuals to say something, if they see something. The pilots also add to the growing array of programs encouraging whistleblowers and self-disclosure. We will continue to scrutinize DOJ’s announcements in this area and analyze them on Enforcement Edge and in our advisories.

For questions on this or any other subject, please reach out to the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.