On 4 October 2023, Deputy Attorney General Lisa Monaco of the U.S. Department of Justice announced (DOJ) a new DOJ-wide policy that aims to provide in M&A transactions buyers who discover during the due diligence criminal conduct at a target company with greater certainty regarding the potential benefits.

The DOJ’s Mergers & Acquisitions Safe Harbour Policy for voluntary self-disclosures aims to provide greater certainty to buyers who (i) self-report within the safe harbour period, (ii) fully cooperate with the DOJ in its investigation, and (iii) engage in requisite and timely remediation, pay restitution, and disgorge any ill-gotten gains that they will receive a presumption of declination from the DOJ.

The safe harbour time periods are six months after the closing of the transaction for voluntary self-disclosure and one year for remediation that is timely and appropriate. Under a “reasonableness analysis” to be applied by the DOJ, these two timeframes may be extended on a case-by-case basis.