If submitting a voluntary disclosure to OFAC, BIS, DDTC or one of the many other agencies involved in export controls and sanctions enforcement was not enough, it is becoming increasingly clear that it will soon be necessary to consider whether to disclose possible criminal wrongdoing to the DoJ as well. David Laufman of the DoJ’s National Security Division reportedly stated at an ABA event last week that DoJ will soon issue guidance encouraging voluntary disclosures to DoJ whenever there is evidence of a willful violation of export controls, sanctions or other national security laws. This would be in addition to disclosures that the civil and administrative enforcement agencies – OFAC, BIS, DDTC and the rest – would expect to see. Requiring disclosures to DoJ would more clearly tie export/sanctions enforcement together with the Yates Memo, which DoJ has already said will apply in this arena. The Yates Memo seeks to link corporate cooperation credit more closely with adequately disclosing individual wrongdoing, and DoJ has said it will go after those culpable individuals more aggressively.
The new DoJ position regarding disclosures could have the effect of discouraging disclosures altogether – if OFAC or another agency were to view a disclosure as showing willful misconduct but there was no accompanying disclosure made to DoJ, there could be a risk of additional consequences, or at least bad perceptions by the government. One possible remedy for this untoward consequence would be for DoJ’s guidance to make clear that a disclosure to civil authorities, where there is an agency referral to DoJ, will count for purposes of preserving voluntary disclosure credit, subject to any follow on cooperation by the disclosing party. DoJ has been saying for months that this new guidance should be coming soon. It looks like we’ll have to continue to stay tuned before we can offer a full assessment.