June 5, 2025 Internal Guidance from DOJ’s Criminal Division Prioritizes Victim Compensation in Coordinated Corporate Resolutions
Client Alert | June 17, 2025
Gibson Dunn will continue monitoring these developments and reporting to our trusted friends and clients in the days, weeks, and months ahead.
Victim compensation has long been a core consideration for U.S. Department of Justice (DOJ or the “Department”) prosecutors in the context of corporate criminal resolutions. New internal DOJ guidance issued on June 5th by Matthew Galeotti, Head of DOJ’s Criminal Division (the “Guidance”), expands the Criminal Division’s focus on victim compensation when deciding whether and how to credit penalties in multi-agency and multi-jurisdictional resolutions.
Highlights from June 5th Internal Guidance
The Guidance introduces factors that prosecutors in the Criminal Division must consider in determining the appropriate coordination of corporate penalties in parallel proceedings—whether they be criminal, civil, regulatory, or administrative, and whether foreign or domestic. The Guidance does not rescind, and indeed specifically cites, the Policy on Coordination of Corporate Resolution Penalties issued in the first Trump administration (commonly referred to as the “anti-piling on policy” and now incorporated as Sections 1-12.100 of the Justice Manual). Nevertheless, the new Guidance complicates the mechanics of an “anti-piling-on” analysis, and signals that where the objectives of compensating victims and avoiding the stacking of corporate penalties may be in conflict, Criminal Division prosecutors are likely to prioritize victim compensation. Overall, the Guidance indicates that the Criminal Division will be less inclined to credit or offset penalties paid to other regulators, foreign or domestic, if doing so may reduce the overall funds available to compensate victims. In particular, the Guidance instructs Criminal Division prosecutors on the following:
- Crediting Payments Made to Domestic Authorities. The Guidance directs that when considering payments due to other domestic authorities related to the same underlying conduct, prosecutors should not credit those amounts when doing so would reduce the availability of restitution or forfeiture that could be used to compensate victims directly or criminal penalties that could be used for general victim support via the Crime Victims Fund (CVF). This is the directive unless the other authority has a demonstrably effective system to provide such compensation or support to crime victims. The Guidance explicitly discourages prosecutorial approval of crediting monies to be paid into a general state treasury or the U.S. Treasury.
- Crediting Payments Made to Foreign Authorities. The guidance acknowledges that “appropriate crediting” in a resolution with foreign authorities “can . . . serve to effect justice in the United States.” But it also instructs prosecutors to assess whether the foreign agency or regulator involved in a parallel resolution has the means or tools to meaningfully compensate victims before agreeing to offset payments.
Prosecutors are directed not to credit payments that would otherwise support victim compensation “unless the foreign authority has a more effective mechanism [than DOJ] for directly compensating victims of the underlying crime.” Where general victim support (rather than direct victim compensation) is at issue, the Guidance provides prosecutors with a balancing test to consider the appropriate outcome, including the interest in providing general assistance to crime victims, “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 Division goals.”
- Seven-Factor Test for Assessment. The Guidance emphasizes a careful balance between victim support and international cooperation with DOJ’s foreign counterparts. It encourages prosecutors to make crediting decisions by weighing the following non-exhaustive list of factors:
- The degree of overlap in the conduct under investigation as between the parallel matters;
- The equities of the authorities involved, including how the case originated, which authorities developed key evidence, and the resources expended by the authorities involved;
- Where the misconduct occurred and made an impact, and the seriousness of the harm incurred by the misconduct;
- The relative level and value of cooperation of other authorities;
- The involvement of the company under investigation, and namely the “timeliness and genuine efforts of the company in seeking and advancing a coordinated resolution”;
- The anticipated timing of the parallel resolutions; and
- DOJ’s enforcement practices and priorities.
Importantly, “[i]n all cases,” the Guidance puts the onus on companies to “meaningfully attempt to coordinate resolutions,” noting that Criminal Division prosecutors will not credit resolution payments when companies do not work to coordinate them.
Observations and Questions
The Guidance raises a number of questions, including how widespread its impact will be in practice and how the Department will seek to implement it.
Potentially limited scope of corporate criminal resolutions impacted by the Guidance. The Guidance acknowledges that the assessment is triggered by the identification of “victims of the underlying crime with compensable losses.” As a practical matter, it is unclear how significantly this guidance will impact corporate resolutions going forward, given that the conduct animating many past corporate resolutions historically has not involved identifiable victims. For example, as per Gibson Dunn’s inventory of corporate criminal resolutions, less than 15% of DOJ corporate resolutions since 2016 have involved a provision to compensate victims of the conduct resolved by the action. FCPA resolutions in particular—which often involve coordinated penalties with foreign law enforcement—rarely have victims.
Resolutions may become more expensive because of the Guidance. The Department’s prior emphasis on avoiding piling on seems to have yielded in part (where applicable) to the prioritization of victim compensation, implicitly suggesting that the Department may not credit—and therefore may contribute to—duplicative resolution payments, resulting in companies paying more money to resolve conduct where more than one agency is involved. To avoid or mitigate this result, companies and their corporate counsel will need to effectively advocate that crediting is appropriate in their particular circumstances, including by proactively addressing specific actions that have been or will be taken to compensate victims. Although the Guidance may not be so intended, it could also be read so as to yield higher penalties in other scenarios, in particular in resolutions that include civil penalties under the False Claims Act. On its face, the Guidance would allow the Criminal Division to seek restitution to government agency victims even if the resolution included a civil settlement paid to the Treasury because the Guidance discourages crediting direct-to-Treasury payments as restitution. In addition, the Guidance could encourage Criminal Division prosecutors to be more aggressive in seeking criminal forfeiture—and less willing to credit other parallel penalties against such forfeitures. DOJ’s Whistleblower Program is funded through forfeitures, and the Guidance could encourage prosecutors to decline to credit parallel resolution payments where they would serve to decrease funds flowing to that Program.
Interaction of June 5 Guidance with Corporate Enforcement guidance and coordination with foreign authorities. The practical impact of the Guidance and its intersection with the Criminal Division’s preexisting guidance, including the Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) and Blanche Memorandum, addressing the Department’s investigation and enforcement of the U.S. Foreign Corrupt Practices Act, remains to be seen. The application of the Guidance in crediting resolution payments due to foreign authorities will be particularly significant where the underlying conduct primarily involves foreign entities, victims, and regulators with limited U.S. touchpoints. The directive that Criminal Division prosecutors should determine as early as possible in their investigation whether a foreign authority has a parallel investigation and whether it is appropriate to defer to foreign enforcement where U.S. interests are not implicated echoes the deference to foreign authorities in primarily foreign cases discussed in our client alert on the Blanche Memorandum.
Alignment with other Trump Administration priorities. There are many ways in which the application of the Guidance will likely be impacted by other Trump Administration policy priorities. As just one example, the Administration’s “America First” ethos may influence the extent to which the Department agrees that conditions have been met to credit resolution payments due to foreign authorities. For example, the Department may be less likely to agree to credit payments due to foreign authorities if the focus of such authorities’ crime victims funds are focused on compensating victims of the crime in that country and/or do not have a mechanism to compensate U.S. victims of the same conduct.
Takeaways
For companies navigating Criminal Division investigations, particularly multinational corporations or companies involved in money laundering, export controls, FCPA, and other or cross-border investigations, the Guidance presents:
- Increased complexity in achieving global settlements, emphasizing the importance of adopting coordinated legal strategies across jurisdictions;
- Reduced flexibility in negotiating resolution payment offsets;
- Opportunities to proactively inform the Criminal Division of any parallel resolutions to maximize potential penalty offsets;
- A potentially higher price to resolve corporate criminal investigations; and
- A greater focus (where applicable) on proactively addressing specific actions that have been or will be taken to compensate victims.
Gibson Dunn’s White Collar Defense and Investigations Practice Group successfully defends corporations and senior corporate executives in a wide range of federal and state investigations and prosecutions, and conducts sensitive internal investigations for leading companies and their boards of directors in almost every business sector. The Group has members across the globe and in every domestic office of the Firm and draws on more than 125 attorneys with deep government experience, including more than 50 former federal and state prosecutors and officials, many of whom served at high levels within the Department of Justice and the Securities and Exchange Commission, as well as former non-U.S. enforcers.
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