USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
grammes and that the topics it addresses are not exhaustive. While recognising that a compliance programme must be tailored to a company’s particular risk profile, the Compliance Guidance identifies best practices that are common to effective compliance programmes. These practices include, but are not limited to: • a commitment from senior management to a “culture of compliance;”a clearly articulated policy against corruption and a code of conduct; • the assignment of responsibility for oversight and implementation of the anti-bribery and corruption compliance programme to a senior executive with appropriate experience, sufficient autonomy from management, and resources to ensure the pro - gramme is implemented effectively; • assessing the risks faced by the company so that the company can take a risk-based approach in designing and implementing its anti-bribery and corruption compliance programme; and • periodically testing and reviewing the anti-bribery and corruption compliance programme. The Justice Manual also includes the FCPA Corpo - rate Enforcement Policy (CEP). The CEP establishes a rebuttable presumption that the DOJ will decline to prosecute a company for FCPA violations if the com - pany: • voluntarily self-discloses misconduct; • fully co-operates with the DOJ’s investigation; and • takes timely and appropriate remedial action. The CEP provides insight into how the DOJ assesses compliance and remediation and potential penalty reductions for co-operating companies that do not qualify for a declination. The DOJ has since applied the same approach beyond FCPA violations. CEP Revisions In May 2025, the DOJ revised the CEP to reflect changes in DOJ policy and practice. These revisions create significant incentives for voluntary disclosure (see 6.2 Voluntary Disclosure Incentives ). As estab - lished in the March 2023 CEP revisions, in order to receive full credit for timely and appropriate reme -
diation, a company must show that it has a prohi - bition against the deletion of business records and has appropriate guidance and controls on the use of personal devices and messaging platforms, including ephemeral messaging applications.
6. Disclosure Processes 6.1 Disclosure Obligations
In general, there is no duty to disclose violations. Depending on the specifics of a particular violation, however, US individuals and/or companies may be exposed to liability for failing to disclose the violations (eg, if a violation exposes a US securities issuer to “material” risks, the issuer may face civil or criminal liability for failing to disclose the risk to its sharehold - ers). Disclosure and co-operation with a subsequent government investigation often helps a company or individual reduce a potential penalty. 6.2 Voluntary Disclosure Incentives The USSG and the Justice Manual (including the CEP) both encourage companies to self-disclose miscon - duct by offering “credit” for such co-operation. Co- operation credit is a key aspect of US criminal and regulatory defence, and it often features prominently in authorities’ decisions about what type of action to bring and whether or not to do so, as well as providing a basis for reductions in penalties and other negative consequences. In May 2025, the DOJ revised the CEP to create fur - ther incentives for voluntary disclosure, by laying out three tiers for potential penalty reductions. First, absent aggravating circumstances, the DOJ will issue a declination if a company voluntarily self-discloses, fully co-operates, and timely and appropriately reme - diates. Second, the DOJ will provide a non-prosecu - tion agreement with a 75% reduction in penalties if a company self-reports to the DOJ in “good faith”, fully co-operates, and timely and appropriately remediates. Third, the DOJ will offer a resolution with up to a 50% reduction in penalties if a company meets some of the expectations for self-reporting, co-operation, and remediation. The DOJ may also consider aggravating circumstances when evaluating the latter two options.
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