SDNY's New Policy on Declinations

In this episode, Tom Fox welcomes back Hughes Hubbard partner Mike DeBernardis to discuss the Southern District of New York’s new corporate enforcement voluntary self-disclosure program for financial crimes and why SDNY leadership, including Jay Clayton, likely issued it: to encourage self-disclosure that saves enforcement resources and supports DOJ’s focus on individual accountability.

They compare the policy to the (former) DOJ’s Corporate Enforcement Policy, highlighting notable distinctions such as SDNY’s narrower scope (financial/market integrity offenses) and a revised approach to aggravating factors that excludes common CEP considerations like seriousness, pervasiveness, and senior management involvement, while carving out categories including foreign bribery and sanctions evasion, potentially reducing forum shopping. They also examine a “conditional declination” within two to three weeks, its implications for investigation speed and timeliness, and added pressure from whistleblower programs and compressed internal triage timelines.

Key highlights:

Why SDNY Issued It

SDNY Significance

Aggravating Factors Shift

Does It Move Needle

Conditional Declination Speed

Whistleblowers and Pressure

Resources:

 Hughes Hubbard and Reed

Mike DeBernardis on LinkedIn

Tom Fox

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For more information on the use of AI in Compliance programs, my new book, Upping Your Game, is available. You can purchase a copy of the book on Amazon.com Learn more about your ad choices. Visit megaphone.fm/adchoices