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New M&A Safe Harbor Policy for Voluntary Self-Disclosures: Weighing the Risks vs. Potential Benefits

A live 90-minute premium CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, May 29, 2024 (in 11 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

(Alert: Event date has changed from 5/16/2024!)

or call 1-800-926-7926

This CLE webinar will discuss the new safe harbor policy from the Department of Justice (DOJ) incentivizing acquiring companies in M&A transactions to voluntarily self-disclose criminal misconduct they discover through the acquisition of a target. The panel will provide an overview of the new policy, the conditions for application of the safe harbor, the increased importance of compliance and due diligence, and practical guidance for advising clients who are weighing the benefits versus the risks of self-disclosure.

Description

On Oct. 4, 2023, the DOJ announced its new M&A safe harbor policy for voluntary self-disclosure of criminal conduct, which formalized a practice that had already been in place in specific M&A cases. The new safe harbor policy applies to criminal conduct discovered by acquirers during the course of M&A transactions. Acquiring companies that qualify under the safe harbor will be entitled to the presumption of a criminal declination, and the acquired company may also be available for cooperation credit if it meets certain criteria.

The safe harbor creates opportunities for buyers to address challenging compliance issues that they might inherit through an M&A deal, while also creating new pressures on buyers to thoroughly diligence the target companies' practices.

To qualify under this new policy, acquiring companies must self-disclose misconduct they uncover within six months from the date of closing, cooperate with the DOJ during their investigation, and undertake full remediation within one year from the date of closing. The policy does not apply to misconduct that was otherwise required to be disclosed by law, is publicly known, or already discovered by or disclosed to the DOJ. The policy also does not affect civil merger enforcement. More prompt disclosure may be required under the policy if it implicates national security concerns.

Meeting the tight timelines under the new policy to qualify for the presumption of declination requires proactive, comprehensive diligence both pre-closing and post-closing. Developing a robust integration plan, including compliance training, and establishing reporting channels for compliance-related issues can help position an acquirer to identify misconduct where diligence was limited during the acquisition process.

Listen as our authoritative panel discusses the DOJ's new safe harbor policy and provides practical guidance for advising M&A transactional parties about their enforcement risks and the potential awards of self-disclosure.

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Outline

  1. Background
  2. Scope and conditions of the safe harbor
    1. Bona-fide, arms-length transactions
    2. Timelines for disclosure (six months) and remediation (12 months)
    3. Exceptions available in certain circumstances
    4. Aggravating factors and recidivism
  3. Importance of compliance and due diligence
  4. Assessing disclosure risks and rewards
  5. Impact of the new safe harbor policy on the acquired company
  6. Practical guidance and key takeaways

Benefits

The panel will address these and other key issues:

  • What types of violations does the new self-disclosure safe harbor cover?
  • What are the incentives for disclosing misconduct?
  • What are the disincentives for self-disclosure that still exist despite these new policies?
  • How should buyers and sellers structure their pre- and post-diligence procedures to address the new safe harbor policy?

Faculty

Linehan, Patrick
Patrick F. Linehan

Partner
Steptoe

Mr. Linehan's diverse practice focuses on representing corporate and individual clients in internal investigations,...  |  Read More

Nasson, Christopher
Christopher L. Nasson

Partner
K&L Gates

An experienced litigator and former federal prosecutor, Mr. Nasson's practice focuses on regulatory enforcement,...  |  Read More

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