On September 16, the US Attorney's Office for the Northern District of Illinois (NDIL) announced the launch of its Individual Self-Disclosure (ISD) Pilot Program. The program offers non-prosecution agreements to qualifying individuals who report organizational misconduct. Individuals may qualify if they have participated in and have knowledge of criminal wrongdoing due to their employment.
The Pilot Program, which will last six months, is the latest in a series of disclosure programs taking shape around the country and adds yet another incentive for individuals to report wrongdoing to law enforcement. In contrast to the Department of Justice's Corporate Whistleblower Awards Program, the ISD Program is intended for individuals who participated in the alleged wrongdoing. The program aims to increase early and accurate reporting by these individuals by alleviating their fear of criminal prosecution. Depending on the success of the program, the NDIL may extend it more permanently.
Individuals can report misconduct via email by submitting a form that will be reviewed by a working group of Assistant United States Attorneys and Section Chiefs. Individuals reporting misconduct must also be willing to meet with law enforcement and testify in future proceedings. If the working group decides that a follow-up meeting is needed, the information the reporter shares in that meeting will not be used against them, unless it involves information regarding crimes of violence, crimes against children, sex offenses or national security offenses.
Eligibility and Limitations
The NDIL will decide whether to offer a non-prosecution agreement on a case-by-case basis. As part of its determination, the NDIL will consider a number of factors, including:
- the individual's truthfulness;
- the individual's ability and willingness to assist law enforcement;
- the extent of the individual's participation in the wrongdoing and the timeliness of the reporting;
- the individual's position within the organization; and
- the individual's criminal history.
To be eligible for the ISD Program, the individual must: (1) report on conduct that is unknown to the government, (2) completely disclose all criminal conduct, and (3) agree to forfeit or disgorge any proceeds from the criminal activity. Anyone who has been informed they are a subject or target of a federal criminal investigation may not participate in the program. Anonymous reporting is not allowed, and the NDIL has the discretion to make public any non-prosecution agreements stemming from the ISD Program.
Some aspects of an individual's background may preclude them from participating in the program, including prior felony convictions involving violence or the threat of violence, certain sex offenses, and fraud or dishonesty. The program is not available for elected federal or foreign officials, federal law enforcement officers, or individuals holding the highest-ranking position in, or primary control over, their organization. Individuals seeking to provide information about federal tax offenses, violations of the Foreign Corrupt Practices Act, and certain national security offenses are also ineligible for the program.
Key Takeaways
The NDIL's ISD Pilot Program is one of several self-disclosure programs introduced by the DOJ and other government agencies in recent years, demonstrating the government's increasing focus on identifying wrongdoing within organizations. The most-effective way to avoid government scrutiny is to prevent wrongdoing within organizations in the first place, including by fostering a culture of compliance and implementing effective compliance programs that enable employees to confidently report issues internally. In light of this development, organizations should keep in mind:
- The potential incentives for employees to report misconduct prior to, or in lieu of, any internal reporting;
- Opportunities to strengthen policies and procedures surrounding internal reporting, investigations, and corporate self-disclosure; and
- Opportunities to strengthen internal whistleblower protections and anti-retaliation policies.
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