The Intersection Between Whistleblowers, Compliance, and the New DOJ Declination Policy

Quick Hits

• The DOJ will not prosecute companies when they voluntarily self-disclose misconduct, fully cooperate with the DOJ’s investigation, and correct the misconduct in a timely and appropriate manner.
• Companies will be eligible for a declination even if a whistleblower reports to the DOJ first, if the company self-reports to DOJ within 120 days of receiving an internal report.
• The new policy became effective immediately.

The DOJ investigates a wide range of corporate crimes, including financial fraud, identity theft, insider trading, foreign bribery, money laundering, sanctions evasions, government benefit fraud, and healthcare kickback schemes. The new enforcement policy applies to all types of corporate criminal cases, except those relating to antitrust matters. It applies to companies in all industries, including financial services.

To receive a declination (or decision to not prosecute), a company must:

• promptly self-report conduct previously unknown to the DOJ,
• self-report before an imminent threat that DOJ would discover the misconduct,
• have no previous obligation to self-report to the DOJ,
• fully cooperate with investigators, and
• promptly correct violations.

If a whistleblower reports wrongdoing both internally and to the DOJ, the company will still be exempt from prosecution if the company self-reports to the DOJ within 120 days after receiving the whistleblower’s internal report.

If a company fully cooperated and timely remediated misconduct, but it is ineligible for a declination because of aggravating factors that warrant a criminal resolution, the DOJ may provide a non-prosecution agreement, reduce the fine by 50 percent to 75 percent, and not require an independent compliance monitor. Aggravating factors could include the egregiousness or pervasiveness of the misconduct, the severity of harm caused by the misconduct, or previous criminal charges of similar misconduct within the last five years.

Shortly after implementing the new policy, on March 17, 2026, the DOJ granted its first declination under this policy to Balt SAS and its subsidiary Balt USA, a medical device manufacturer. The company voluntarily self-disclosed that an internal investigation uncovered bribery by a physician at a French hospital in order to ensure the hospital would purchase medical devices from Balt. The DOJ found the company took disciplinary action against individuals, strengthened controls, provided compliance training, terminated certain business relationships, and disgorged itself from the gains from illegal actions.

Key Takeaways

• Ensure internal reporting policies and procedures are robust.
• With the 120-day window to self-report to the DOJ after receiving an internal report to receive the declination, prompt investigation of internal claims is critical.
• As highlighted by the Balt matter, prompt and thorough remediation is essential to the decision to grant the declination.
• Consider updating training to employees, so they know the proper avenues to report misconduct internally. If an employee bypasses internal channels and reports directly to the government, the company loses the opportunity to discover the issue and remediate via an internal report.
• Provide training to managers, so they understand when to escalate concerns that they receive from their direct reports. 

Ogletree Deakins’ Financial Services Industry Group and Whistleblower and Compliance Practice Group will continue to monitor developments and will post updates on the Ethics/Whistleblower blog as additional information becomes available.

Jane A. Norberg is co-chair of the Whistleblower and Compliance Group and a shareholder in Ogletree Deakins’ Washington, D.C., office.

Kathryn C. Newman is Of Counsel in Ogletree Deakins’ Las Vegas office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts