Billy Jacobson, a former federal prosecutor now at Jacobson Lopez in Washington, DC, said the continued usage of the phrase “aggravating circumstances” in the guidance gives the DOJ latitude to interpret cases as it sees fit.
“It’s hard to say with definitiveness when there will be a declination and when there won’t be,” using that language, said Jacobson, who believes the new guidance still improves on past iterations.
The previous policy said companies could mitigate aggravating factors by “immediately” disclosing wrongdoing and providing “extraordinary cooperation” – language that Jacobson said was “vague from the onset” and removing it provides some improvement.
“I would have liked the whole concept of aggravating circumstances to be done away with, but … at least these ideas of ‘immediate disclosure’ and ‘extraordinary cooperation’ appear to have been done away with,” Jacobson said.
