LITIGATION TRENDS 2025 | 135 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C DOJ Whistleblower Programs Mere months ago, prior to the new enforcement policies and priorities, the DOJ was placing a premium on timely disclosure of corporate wrongdoing. While a company’s voluntary self-disclosure was, and likely still is, the gold standard, there are many instances where companies are either unaware of the misconduct or strategically choose not to self-report it. The DOJ has encouraged corporate whistleblowers to fill that void. The DOJ set forth a new corporate whistleblower program, effective as of August of 2024, providing new incentives for individuals providing information that leads to forfeiture exceeding $1,000,000. To be eligible for the award, a whistleblower must (i) voluntarily provide original information—meaning information derived from their independent knowledge or analysis, (ii) the information must be non-public and not previously known to the DOJ, and (iii) the information must materially add to what the DOJ might already know or have. The individual must also cooperate with the DOJ in any related investigation or action, which could include providing testimony, producing evidence, or working proactively under the supervision of U.S. law enforcement officers. Following the DOJ’s lead, the U.S. Attorney’s Offices for the Eastern District of New York and Southern District of New York both created and implemented their own pilot programs. Similar to the DOJ’s program, the district-level programs encourage early voluntary self-disclosure of criminal conduct. However, there are key differences. First, unlike the DOJ’s policy, the EDNY and SDNY programs do not offer monetary awards for whistleblowers; instead, the whistleblower may receive an opportunity to shield themselves from criminal actions and penalties (e.g., a non-prosecution agreement). There are additional details surrounding each of these policies, including the extent to which the whistleblower may have been involved in or led the criminal conduct. Thus, individuals should work with counsel to navigate these policies and the inherent risks in approaching prosecutors with information regarding criminal conduct. The DOJ’s whistleblower program was modeled after the whistleblower programs at the SEC and the CFTC. Each of these programs has been in existence for over a decade and those agencies have marketed the successes of those programs in terms of receiving whistleblower tips and granting whistleblower awards. Despite the fact that the current administration is signaling a lighter approach to enforcement against entities, U.S. companies should continue to engage in proactive compliance efforts by self-policing and selfreporting any violations of the federal securities or commodities laws, lest a company insider submits a whistleblower tip. A self-report potentially secures a real monetary benefit. Even the Gensler Commission, despite a robust pro-Enforcement approach, made clear, repeatedly, that parties would be treated better at the settlement stage of an investigation if they had self-reported their violations, and that remedial efforts and meaningful cooperation with the staff’s investigation would further enhance that benefit. The CFTC’s recent advisory on how its Division of Enforcement will evaluate all these factors when recommending enforcement actions to the Commission promotes a similar theme. It includes a “Mitigation Credit Matrix” describing the presumptive mitigation credit—as a percentage of the Division’s initial calculation of the civil monetary penalty—that a party may be eligible for if that party has self-reported and/ or cooperated. The presumptive mitigation credit can be as high as 55% “for an exemplary self-report and exemplary cooperation.” DOJ’s False Claims Act Successes The DOJ had significant success in its False Claims Act cases over the course of 2024. Indeed, in the last two weeks of 2024 alone, the DOJ settled approximately a dozen FCA matters, collecting approximately $165 million in government funds. These FCA C White Collar Defense 134 | Weil, Gotshal & Manges LLP
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