Haynes Boone Partner Taryn McDonald spoke with Corporate Compliance Insights discussing the challenges companies face in deciding whether and when to self-disclose potential misconduct to the Department of Justice, including balancing early disclosure expectations with the need to investigate facts and maintain a strong internal compliance culture.
Read an excerpt below.
Practitioners who navigate these decisions regularly say the tension is real.
“[The DOJ wants] you to disclose all relevant facts, but they also want you to disclose very, very early,” McDonald. “That’s really hard to do. … If you make a decision to disclose, you’re not waiting till it’s all tied up with a bow. It’s just not going to be possible.”
…
For companies weighing whether to disclose, the enforcement record suggests the decision rarely turns on the investigation findings themselves but on a balance of many factors, including the nature of the conduct itself.
“Part of that calculation is also what is the conduct, what does it look like, who was involved, how prevalent is it and all of those things kind of weigh more in favor of a potential self-disclosure than not,” McDonald said.
Establishing and reinforcing compliance culture is the first of many steps toward self-disclosure, McDonald said.
“Having a real compliance program, a real compliance culture where folks at the company are encouraged to report any issues … if you have no way to identify a potential issue, it really handicaps you as a company in terms of self-disclosure.”
To read the full article from Corporate Compliance Insights, click here.
