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How to Get a Non-Prosecution Agreement Through Cooperation
Cooperation as Currency
The non-prosecution agreement is not a reward for good behavior. It is a transaction, and the government sets the price.
Most articles on this subject begin with a definition. The definition is not the part that matters. What matters is that the Department of Justice has constructed, through decades of memoranda and enforcement actions, a system in which the company or individual who cooperates on the government’s terms receives a measurably different outcome than the one who does not. The architecture of that system changed in March 2026, when the Department released its first department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy. The implications are still being absorbed by practitioners and the companies they represent.
An NPA, at its core, is a contract between a prosecutor and a subject in which the government agrees not to file criminal charges in exchange for specified cooperation, remediation, and financial concessions. No charges are filed, no conviction is entered, and the agreement exists outside the courtroom, which is precisely what gives the government such considerable control over its terms.
The question is not whether an NPA is desirable. It is whether you are in a position to obtain one.
The Department’s Framework
DOJ evaluates corporate cooperation along a continuum. At one end sits the full declination: the government declines to prosecute at all. At the other, a guilty plea or trial. The non-prosecution agreement occupies a specific position on that continuum, and understanding where it sits requires understanding the factors the Department weighs when determining how to resolve a case.
The Justice Manual identifies several: the nature and seriousness of the offense, the pervasiveness of wrongdoing within the organization, the corporation’s history of misconduct, and the corporation’s willingness to cooperate. Cooperation, in the Department’s lexicon, is not a vague aspiration.
Under the March 2026 Corporate Enforcement Policy, the framework operates in three tiers. A company that voluntarily self-discloses its misconduct to the appropriate DOJ component, cooperates with the ensuing investigation, and remediates the underlying conduct in a timely manner will receive a declination, absent aggravating circumstances. That language is mandatory. The prior policy created a presumption. The current one creates a guarantee.
The second tier is where the NPA resides. A company that cooperates and remediates but does not qualify for the first tier (because the disclosure did not meet the voluntary self-disclosure standard, or because aggravating factors are present) may receive a non-prosecution agreement with a term of fewer than three years, no independent compliance monitor, and a fine reduction in the range of fifty to seventy-five percent off the lower end of the Sentencing Guidelines range.
The difference between a declination and an NPA is often a matter of weeks: how soon after discovering the misconduct did the company pick up the phone.
That reduction was previously fixed at seventy-five percent under the Criminal Division’s standalone policy. The department-wide version introduces a range, which means the quality and timing of cooperation now carry even greater weight in determining where within that range a company lands.
The third tier applies when a company does not qualify for either of the first two. Prosecutors retain full discretion over the resolution form, the term, the compliance obligations, and the penalty. In the cases I have seen, many companies arrive at this tier not because the underlying conduct was more severe than a second-tier case, but because the internal response was slower than the government’s timeline required. The severity of the conduct is one variable. The velocity of the response, it turns out, is another, and the Department’s patience for the second variable is shorter than most general counsel appreciate.
One detail that receives insufficient attention: the 2026 policy now requires prosecutors to include in corporate resolution agreements information explaining why a particular company received a particular amount of cooperation credit. The stated purpose is transparency.
When Silence Becomes a Position
A company that has discovered internal misconduct and has not yet disclosed it to the Department is, in the government’s view, making a choice. The 2026 policy does not state this in so many words, though the structure of its incentives communicates it with considerable clarity.
The voluntary self-disclosure requirement demands that the disclosure be made to the appropriate DOJ criminal component before an imminent threat of disclosure or government investigation, and that it be truly voluntary. If a whistleblower has already contacted the government, or if a regulatory inquiry is underway, the window for voluntary disclosure may already be closed.
In practice, the decision to self-disclose sets in motion a sequence that cannot be reversed: the internal investigation expands, outside counsel is retained, document preservation orders are imposed, and the company begins constructing the factual narrative it will present to the government. That narrative, if it is incomplete or inconsistent, will be used against the company more effectively than the underlying conduct would have been.
Whether the Department intended the policy to function as an accelerant, compressing the time between discovery and disclosure into something approaching real-time reporting, is a question worth considering.
Voluntary Self-Disclosure and the Timing Problem
The single most common mistake in the NPA context is not a failure of cooperation. It is a failure of speed.
Companies conduct internal investigations. They should. A responsible organization that discovers potential misconduct will want to understand the scope and nature of that misconduct before disclosing it to a federal agency. The difficulty is that the time required to conduct a thorough internal investigation and the time the government permits before the disclosure window closes are not the same interval.
The Department’s policy does not define a specific deadline for voluntary self-disclosure. It uses the phrase “reasonably prompt.” In at least one matter resolved by the Criminal Division, a company’s self-disclosure was deemed insufficiently prompt, and the company received an NPA rather than a declination. I am less certain about how this standard will be applied uniformly across all DOJ divisions now that the policy has been expanded, but the direction is clear.
The handling of internal whistleblowers introduces a further dimension. Under the 2026 policy, if a whistleblower makes both an internal report to a company and a separate submission to the Department, the company can still qualify for a declination, provided it self-reports the conduct within one hundred and twenty days of receiving the whistleblower’s internal report and meets all other requirements. That deadline is generous by government standards, though not by the standards of a complex multinational internal investigation.
Our approach to this timing problem differs from what most practitioners recommend. The standard advice is to complete the investigation and then disclose. We have observed that this sequence, while procedurally sound, tends to produce disclosures that arrive after the government’s patience has been depleted. We counsel disclosure at the point of reasonable certainty about the nature of the misconduct, even when the full scope remains undetermined. The Department accepts rolling disclosures. What it does not accept is silence during the period when the company is still deciding whether silence is the better strategy.
The company that discloses early with incomplete information and continues to cooperate will, in most of the cases we have observed, receive more favorable treatment than the company that presents a polished report three months past the point at which the government’s own work had identified the same conduct.
The Individual Path
In April 2024, the Criminal Division announced a pilot program extending the non-prosecution agreement to individuals. The program is narrower than its corporate counterpart, and the requirements are more personal in every sense.
An individual seeking an NPA under the pilot program must provide actionable, original information about criminal conduct involving a corporation. The information must be provided voluntarily, before any government inquiry has commenced regarding the subject matter. The disclosure must be truthful and complete, including the full extent of the individual’s own involvement in the misconduct. The individual must agree to cooperate with the Department’s investigation (including testimony before a grand jury or at trial) and must provide substantial assistance in the investigation and prosecution of at least one individual or entity of equal or greater culpability.
The individual must also forfeit any profits derived from the criminal conduct and pay restitution or victim compensation.
Certain categories of individuals are excluded: chief executive officers, chief financial officers, and individuals who served in equivalent roles during the relevant period. Neither are individuals who organized or led the criminal activity, nor public officials. There are exceptions to this exclusion, though in practice they tend to confirm the rule. The program is designed for the person in the middle: the employee (who, it should be noted, participated in the conduct at a level sufficient to face prosecution but not so central as to have directed it, and who now possesses information the government values more than the satisfaction of prosecuting a mid-level participant) willing to provide that information at personal cost.
It is a strange feature of the modern enforcement environment that the employee who reports first may receive an NPA while the company that employs them, reporting second with a more complete picture, may receive only a declination. The incentive structure produces a race, and not every participant in that race is running in the same direction.
What this pilot program created is a dynamic in which employees with knowledge of misconduct must assess their own exposure before the company’s internal investigation reaches them. An employee who is interviewed by internal counsel, and who then contacts the Department independently, occupies a different procedural posture than one who contacts the Department before internal counsel knows there is a problem. The distinction matters because the voluntariness requirement looks to whether the disclosure preceded any government inquiry or request.
The early data, such as it is, suggests that the Department is receiving submissions.
The quality and dispositive value of those submissions is something only the prosecutors reviewing them can assess.
Remediation and Compliance Obligations
Even after the agreement is signed, the obligations continue. The NPA is not an endpoint.
Remediation under the 2026 policy requires a root-cause analysis, discipline of employees involved in the misconduct, and controls over personal and ephemeral messaging. The company must provide rolling updates and source attribution. A breach of the agreement’s terms, whether discovered during or after the compliance period, permits the Department to void its obligations and bring any federal charge for which the statute of limitations had not expired at the time of signing.
A company whose compliance program is merely adequate on paper but has not been tested in practice may find the assurance of no monitor is conditional. The 2026 framework states that a second-tier NPA should not require a monitor, but that assurance rests on the company demonstrating an effective compliance program at the time of resolution.
The cost of compliance, for a company of any significant size, often exceeds the fine itself.
The Conversation That Precedes the Agreement
The NPA exists at the end of a process, but the process begins with a conversation. In most cases, that conversation occurs between defense counsel and the assigned prosecutor, and its substance is an offer of proof: a description of what the company or individual knows, what it is prepared to provide, and what it expects in return.
The offer of proof must demonstrate that the cooperation will produce something the government does not already possess. Information the government has already obtained carries no cooperation value. A disclosure that merely confirms what agents established through subpoenas and witness interviews six months prior is cooperation in name. It is not cooperation in the sense the Department’s framework recognizes.
Before the offer of proof, before counsel contacts the Department, there is a period of assessment. The company or individual must determine the nature and scope of the exposure, the quality of the information available, and the realistic range of outcomes. This assessment cannot be conducted without counsel.
The firms that treat this assessment as a formality tend to produce disclosures the government receives as incomplete. The firms that treat it as an open-ended inquiry, revisiting the question of disclosure at each quarterly board meeting, tend to produce disclosures that arrive too late. The appropriate pace is somewhere between those extremes, and identifying it requires a judgment particular to each set of facts, each client, and each prosecutorial office.
A consultation with experienced defense counsel is where that assessment begins. It costs nothing, assumes nothing, and commits neither party to a course of action. It is the first step in a process whose final step, if the facts and the timing and the disposition of the assigned prosecutor permit, may be an agreement that no charges will be filed.