Without fanfare, the Department of Justice (DOJ or the Department) has published a memorandum revising its policy on when – and how – it will give credit to companies for fines and other payments made to other agencies, authorities, or governments in parallel enforcement proceedings.
Announced on June 5, 2025, by Matthew Galeotti, the head of DOJ’s Criminal Division, the “Guidance on Coordinating Corporate Resolutions in Parallel Criminal, Civil, Regulatory, and Administrative Proceedings” (the New Policy) reaffirms DOJ’s commitment to coordination among federal agencies and foreign governments in both investigating and resolving criminal allegations. Significantly, the New Policy increases the focus on ensuring that the interests of the victims of crimes are at the forefront of corporate settlements, and it clarifies that the interests of regulators will not outweigh the primary focus of vindication of victims’ rights.
Ultimately, this New Policy places responsibility on companies to understand how their proposed resolutions in parallel proceedings impact recovering funds for victims – and may result in less credit for companies entering multi-agency or multi-jurisdictional resolutions moving forward.
The 2018 policy
DOJ first adopted a formal policy on crediting payments in parallel proceedings in the first Trump Administration, under then-Deputy Attorney General Rod Rosenstein, who issued a memorandum addressing so-called “piling on” in coordinated multi-agency or -jurisdictional matters (the 2018 Policy). In May 2018, Rosenstein announced that the purpose of the 2018 Policy was to “discourage disproportionate enforcement of laws by multiple authorities” that resulted in “piling on” and “create[d] a risk of repeated punishments that may exceed what is necessary to rectify the harm and deter future violations.” That memorandum was incorporated into Section 1-11.100 of the Justice Manual (JM), entitled “Coordination of Parallel Criminal, Civil, Regulatory, and Administrative Proceedings,” and required prosecutors “to coordinate with and consider the amount of fines, penalties, and/or forfeiture paid to other federal, state, local, or foreign enforcement authorities that are seeking to resolve a case with a company for the same misconduct.” The JM also included several “relevant factors” to be considered when deciding on the possible “apportionment between Department components and with other enforcement authorities,” including the “egregiousness of a company’s misconduct”; statutorily mandated fines, penalties, or other payments; “the risk of unwarranted delay in achieving a final resolution”; and the “adequacy and timeliness of a company’s disclosures and its cooperation with the Department.” While the 2018 Policy did not “prevent Department attorneys from considering additional remedies” such as “provid[ing] restitution to victims,” it did not expressly require prosecutors to focus on recovering funds for the victims of crime.
In the wake of the 2018 Policy, the Department has announced several notable corporate resolutions in which it apportioned the relevant monetary penalties and payments based on parallel proceedings involving other domestic and international enforcement agencies and credited companies for payments made to other entities. This approach, in essence, resulted in a negotiated “all-in” monetary penalty apportioned among different jurisdictions, ideally avoiding “double payments” and capping liability at the total all-in amount, but did not expressly include references to payments to “victims.” The impact on companies negotiating multi-jurisdictional resolutions has been meaningful, with the 2018 Policy resulting in DOJ crediting companies up to 100 percent of US domestic monetary penalties – amounting to hundreds of millions of dollars in potentially duplicative penalties – for payments to foreign jurisdictions to resolve corporate criminal allegations.
Renewed focus on victim compensation
Under the New Policy, DOJ reaffirmed its commitment to not “piling on” corporations when resolving multi-agency or multi-jurisdictional matters. However, the policy has one major new focus not mentioned in the 2018 policy – victims of crime. The New Policy requires prosecutors to consider recovering funds for crime victims when determining whether and to what extent the DOJ will credit payments to domestic agencies and foreign authorities in resolving parallel proceedings. The New Policy states, “[w]hen considering crediting of penalties in parallel resolutions, Criminal Division prosecutors should gather information about how penalties in other authorities’ resolutions will be used, including whether other authorities have the ability to compensate victims through their resolutions.” The New Policy then details considerations for prosecutors when crediting domestic and foreign authorities.
Domestic authorities
Under the New Policy, prosecutors should not credit penalties imposed by other domestic authorities by foregoing forfeiture or restitution which can be used to compensate victims, unless there is a viable alternative mechanism to compensate victims. The New Policy also guides prosecutors not to credit other domestic agencies’ penalties from its own criminal penalties “that would otherwise be used for general victim support through mechanisms such as the [Crime Victims Fund (CVF)], unless those other authorities use their penalties to similarly support victims.” The Policy cites an example wherein a penalty in a parallel proceeding with a State Attorney General would be deposited into the state’s general treasury fund while the DOJ’s penalty would be deposited into the federal CVF. In such a case, the New Policy guides prosecutors to refuse to credit the state’s penalty.
Foreign authorities
The New Policy reaffirms DOJ’s commitment to working with foreign authorities and prompts prosecutors to determine as early as possible if there is a parallel investigation being conducted by foreign authorities. The New Policy also addresses crediting foreign authorities’ resolutions of parallel proceedings with regard to victim compensation, stating that “Criminal Division prosecutors should consider whether there are victims of the underlying crime with compensable losses and should not credit payments that support such victim compensation unless the foreign authority has a more effective mechanism for directly compensating victims of the underlying crime.” Thus, unless a foreign authority demonstrates it is better equipped to compensate victims directly, DOJ will not credit penalties to be paid to those authorities in parallel proceedings.
The New Policy indicates that, where the only payments available for crediting are criminal penalties (which would be used to provide general victim assistance through the CVF), prosecutors should balance:
- The interest in providing general assistance to victims of crime through such deposits
- The interests of jurisdictions where the misconduct occurred, where the effects of the misconduct are most acutely felt, or who have other equities in the investigation, and
- The advancement of other critical Department and DOJ Criminal Division goals.
The New Policy also lists several additional factors for prosecutors to consider when seeking to balance those interests:
- The degree of overlap in the conduct under investigation in the parallel matters by the various authorities
- The equities of the investigating and prosecuting authorities involved, including how the case originated, which authorities developed key evidence, and the investigative and prosecutorial resources expended by the respective authorities
- Where the misconduct occurred, where and how the effects of the misconduct are felt, and seriousness of the harm
- The relative level and value of cooperation provided by other authorities
- The timeliness and genuine efforts of the company in seeking and advancing a coordinated resolution
- The anticipated timing of the respective resolutions, and
- General enforcement practices and priorities of the Department.
Finally, the New Policy notes that the DOJ will not credit payments to other authorities when a company does not meaningfully attempt to coordinate resolutions. In this context, “coordination” typically means that payments to other authorities must be made within a year of the resolution with the DOJ.
Who is a victim?
In corporate white-collar cases, such as those involving claims of fraud or bribery, it can at times be difficult to determine who qualifies as a victim under federal law. Given the New Policy’s focus on recovering funds for victims, it is important for companies to consider the potential victims of an alleged offense during the investigative phase of any matter.
The Crime Victims’ Rights Act (CVRA) defines a “crime victim” as any “person directly and proximately harmed as a result of the commission of a Federal offense,” and, among several rights, entitles victims to be “heard at any public proceeding” and to “full and timely restitution as provided by law.” Depending on the facts in a given case, victims in white-collar cases may be entitled to either mandatory or discretionary restitution, which may include recovering amounts they lost due to an offense and other expenses, including related to participating in the government’s investigation. Under Mandatory Victim Restitution Act (MVRA), which applies to victims of violent crimes as well as victims of “offense[s] against property . . . including any offense committed by fraud or deceit,” a victim includes those who are “directly and proximately harmed as a result of the commission of an offense . . . including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.”
In most complex corporate investigations, questions could arise concerning the number of individuals or entities who might be viewed as potential victims. Given the complexity of issues often involved in these cases, there are often a number of parties that might claim to have been harmed in some way by the alleged offense, ranging from an obvious victim whose bank account was emptied based on a wire fraud scheme, to more complex cases, such as those involving a competitor company that lost a government bid due to procurement fraud or the citizens of a foreign nation whose resources were diverted by a corrupt official. While not every perceived harm related to an offense will satisfy the requirements of direct and proximate causation, DOJ’s emphasis on compensating victims as part of the crediting process may present additional investigative and legal hurdles for companies looking to resolve parallel investigations.
These questions will necessarily be fact-specific, and companies are encouraged to seek legal guidance related to potential victims in order to streamline the investigations and meet DOJ’s expectations under the New Policy.
Takeaways
Although prosecutors have always been tasked with making victims whole wherever possible, DOJ Criminal Division prosecutions of corporate white-collar matters have rarely included identifiable victims under CVRA or MVRA. The New Policy, in focusing on victim compensation as a main driver for crediting payment made under parallel proceedings, will likely have a number of effects on companies attempting to resolve complex criminal and cross-border investigations:
- Focus on restitution: The New Policy shifts the focus of DOJ settlement discussions as well as discussions in parallel proceedings toward restitution and other recoveries that will compensate victims for their losses. Accordingly, in addition to focusing on loss amount, which often drives the criminal fines and other monetary penalties, companies conducting internal and government-facing investigations should include restitution and other sources of victim compensation when evaluating a case. However, companies should be cautious as identifying a “victim” in a criminal case may also lead to potential civil liability in follow-on litigation.
- Fewer credits: Overall, the New Policy may lead DOJ to extend less credit in resolutions involving other domestic and foreign authorities. For example, unless foreign authorities are willing to decrease their penalties to accommodate DOJ’s presumption that they are in the best position to compensate victims under the New Policy, companies in parallel proceedings may be more likely to face potentially duplicative penalties payable to different jurisdictions.
- Company responsibility and advocacy for settlement structure: The New Policy also suggests that companies must be much more involved in negotiating not only the value but the structure of resolutions among numerous domestic and foreign authorities. In order to avoid “piling on,” companies will need to advocate for larger portions of their settlements to go toward restitution, forfeiture, or other payments that will benefit victims in order to receive credit from DOJ. The New Policy explicitly states that DOJ will only credit payments where the company has meaningfully attempted to coordinate its resolution. This means that companies should seek to take greater responsibility for coordinating between the various authorities involved in their investigations and the way that those authorities will use settlement funds to compensate victims.
Conclusion
While the New Policy was issued without much comment by the DOJ, it could significantly impact how companies investigate matters, interact with potential victims, and negotiate and resolve parallel investigations when issues of victim compensation are involved. The New Policy places greater responsibility on companies to coordinate resolutions among various entities and puts the onus on companies to ensure that victims’ rights are considered in order to receive credit from DOJ for payments to other agencies or governments. Companies are encouraged to consider this coordination early in investigations and make restitution analysis a standard part of investigations to better negotiate parallel proceedings between DOJ, domestic authorities, and foreign authorities and be credited for penalties paid to all stakeholders.
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