SDNY’s New Declination Policy: Crime Categories, Cooperation, and Compliance Implications

The award-winning Compliance into the Weeds is the only weekly podcast that takes a deep dive into a compliance-related topic, literally going into the weeds to explore it more fully. Looking for some hard-hitting insights on compliance? Look no further than Compliance into the Weeds! In this episode of Compliance into the Weeds, Tom Fox and Matt Kelly look at the recently announced new Southern District of New York standard for Declinations. They look at SDNY U.S. Attorney Jay Clayton’s newly released self-disclosure/cooperation/declination policy and its implications for corporate compliance. While the core elements, prompt voluntary disclosure, cooperation, remediation, and restitution, mirror existing DOJ expectations, they highlight a significant change: SDNY now treats “aggravated circumstances” as certain categories of crimes that are categorically ineligible for declinations, including foreign corruption/FCPA, sanctions evasion, terrorism, sex trafficking with minors, smuggling, drug cartels, and forced labor, rather than focusing on offense traits such as senior management involvement or recidivism. They note potential inconsistencies with DOJ’s corporate enforcement approach, uncertainty about disclosure timing despite references to promptness and pre-investigation disclosure, broad discretion in enforcement, and the risk of forum shopping. Key highlights: Why SDNY Declinations Matter Clayton Policy Key Changes Aggravated Circumstances Redefined FCPA Carve Out Confusion Timing and Disclosure Pressure Cooperation Restitution Disgorgement Resources: Matt in Radical Compliance Tom in the FCPA Compliance and Ethics Blog Tom Instagram Facebook YouTube Twitter LinkedIn A multi-award-winning podcast, Compliance into the Weeds was most recently honored as one of the Top 25 Regulatory Compliance Podcasts, a Top 10 Business Law Podcast, and a Top 12 Risk Management Podcast. Compliance into the Weeds has been conferred a Davey, a Communicator Award, and a W3 Award, all for podcast excellence. Learn more about your ad choices. Visit megaphone.fm/adchoices