U.S. Attorneys Offices Whistleblower Non-Prosecution Pilot Programs

In 2024, a number of U.S. Attorney’s Offices (USAOs) across the country have rolled out “Whistleblower Pilot Programs” offering the potential of non-prosecution agreements in exchange for voluntary self-disclosure of criminal conduct by participants in non-violent offenses.

While broadly similar, each of these USAO Whistleblower Non-Prosecution Pilot Programs has published its own policy, creating a splintered and confusing landscape for whistleblowers to navigate. Furthermore, these programs differ greatly from other corporate whistleblower programs, including the recently established DOJ Corporate Whistleblower Awards Pilot Program.

Given the great potential for confusion around these Pilot Programs, it essential that corporate whistleblower insiders seek advice from an experienced whistleblower award attorney before entering the USAO Whistleblower Pilot Programs.

The U.S. Attorney Office Whistleblower Non-Prosecution Pilot Programs are programs set up by individual U.S. Attorney Offices to incentivize individuals who have participated in corporate misconduct to come forward and blow the whistle.

U.S. Attorneys Offices will enter a non-prosecution agreement (NPA) with individuals who voluntarily enter the program, agree to fully cooperate with an investigation into the wrongdoing they are alleging and meet a number of strict criteria.

The U.S. Attorney Office Whistleblower Programs are different, and separate, from the Department of Justice’s Criminal Division Corporate Whistleblower Awards Pilot Program. The USAO Whistleblower Pilot Program are for individuals who participated in criminal activity and face criminal liability.

The list of USAOs rolling out Whistleblower Non-Prosecution Pilot Programs continues to grow. The first nine offices to announce programs were:

• Southern District of New York
• Northern District of California
• District of New Jersey
• Eastern District of Virginia
• District of Columbia
• Southern District of Florida
• Eastern District of New York
• Western District of North Carolina
• Northern District of Illinois

The type of misconduct targeted by the programs differ slightly, but in general they align with the description first put forward by the SNDY: “criminal conduct undertaken by or through public or private companies, exchanges, financial institutions, investment advisers, or investment funds involving fraud or corporate control failures or affecting market integrity, or criminal conduct involving state or local bribery or fraud relating to federal, state, or local funds.”

However, the program does not cover individuals who provide information regarding violations of the Foreign Corrupt Practices Act. Individuals looking to blow the whistle on FCPA violations should look to the SEC Whistleblower Program.

The exact criteria for each program differs, but most of the programs require the following, as laid out in the SDNY policy:

1. “The misconduct has not previously been made public and is not already known to the United States Attorney’s Office;
2. The individual discloses the criminal conduct voluntarily and not in response to a government inquiry or obligation to report misconduct;
3. The individual is able to provide substantial assistance in the investigation and prosecution of one or more equally or more culpable persons, and is prepared to cooperate fully with this Office in its investigation and prosecution of the disclosed conduct;
4. The individual truthfully and completely discloses all criminal conduct in which the individual has participated and of which the individual is aware;
5. The individual is not (a) a federal, state, or local elected or appointed and confirmed official; (b) an official or agent of a federal investigative or federal law enforcement agency; (c) a person who otherwise is, or is expected to become, of major public interest; or (d) the chief executive officer or equivalent or chief financial officer or equivalent of a public or private company; and
6. The individual has not engaged in any criminal conduct that involves the use of force or violence, any sex offense involving fraud, force, or coercion or a minor, or any offense involving terrorism or implicating national security and does not have a previous felony conviction or a conviction of any kind for conduct involving fraud or dishonesty.”

No. USAO’s are granted complete discretion in reaching determinations about whistleblower eligibility. There is no guarantee that a whistleblower will satisfy all the eligibility criteria in the eyes of the USAO and there is no avenue to appeal a decision.

No. These USAO programs do not allow for anonymous reporting. While some of the USAOs, such as the SDNY, note that “at least in the first instance, individuals can provide information anonymously, either directly or through counsel” they clarify that the office “will ultimately need to know the individual’s identity.”

No. The U.S. Attorneys Offices Whistleblower Non-Prosecution Pilot Programs do not offer monetary awards.

Yes. According to the SDNY, “is not uncommon for individuals to report a crime to another agency’s whistleblower program, in addition to [the USAO] program.”

Generally speaking, it is recommended that whistleblowers first look to file disclosures to other whistleblower programs, such as the SEC Whistleblower Program or AML and Sanctions Whistleblower Program, before entering a USAO Whistleblower Non-Prosecution Pilot Program in order to help ensure eligibility for monetary awards.