In his recent remarks at the Society of Corporate Compliance and Ethics Conference on September 27, 2016, Principal Deputy Associate Attorney General, Bill Baer (“Baer”), explained the common characteristics of meaningful cooperation in the context of civil enforcement matters. For any individual or entity involved in an investigation, or considering self-disclosure, thinking through the Department of Justice’s characteristics of meaningful cooperation early and often will strengthen the chances of receiving cooperation credit.
Deal-breaker: Satisfaction of the Department’s Individual Accountability Policy
The “Individual Accountability Policy,” also known as the “Yates Memo,” issued on September 9, 2015 outlines the Department of Justice’s expectations related to individual accountability in any investigation, and specifically requires disclosure of all facts concerning the role and involvement of individuals. Baer made clear that, without this, no cooperation credit is given. Game over.
While cooperation is necessarily case and fact specific, and the government possesses discretion in applying cooperation credit, Baer identified at least four common characteristics of meaningful cooperation in the civil enforcement realm:
Cooperation must necessarily help the government in its investigation. Baer explained that proactive cooperation could include the following:
- Disclosing facts relevant to the investigation, without being asked to do so;
- Pointing the government to inculpatory evidence;
- Providing information the government did not know about or recognize as important;
- Providing summaries of evidence prepared specifically to assist the investigation;
- Providing and explaining data compilations;
- Encouraging individuals with personal knowledge of the relevant conduct to cooperate; and
- Providing information that may not have otherwise been discovered.
Keep in mind that an important by-product of significant cooperation by entities and individuals in an investigation is saving the government precious time and resources. In other words, if the information you have provided is not saving time and resources, or identifying some new or novel fact or evidence, the level of cooperation will not be considered as significant or meaningful. Similarly, if you are responding to inquiries and not proactively providing information, that will be taken into account.
Cooperation must necessarily be timely. Baer explained that disclosing information before the government has invested significant time or energy, or the investigation is largely completed, is significantly more helpful and will be given more weight in the context of cooperation. This may require cooperating individuals or entities to make an initial disclosure before all the facts have been fully vetted. This also may require periodic updates or a “rolling production” of information to the government. No one wants to prematurely sound the alarm bells, or identify conduct that ultimately may be a non-issue. However, for individuals and entities considering cooperation, there may well be benefits for early disclosure that could outweigh the concerns connected with disclosure before a full investigation.
3. Significant Impact
The more likely the information is to lead to significant resolutions, the more cooperation credit will be given. For example, Baer stated that cooperation in providing information that allows the government to pursue different individuals or entities involved in the same or similar scheme, or resulting in more overall recoveries, will be considered significant.
4. Positive Result
The more likely the cooperation is to lead to a positive result, defined by Baer as assistance to victims or acknowledgement of responsibility, the better. Baer noted that cooperation in this context is different than an entity hiring outside counsel to investigate the facts, evidence, and individual actors of corporate wrongdoing and passing that information along to the government during an ongoing investigation.
If there was any doubt, Baer made clear that producing documents required by subpoena or making presentations in an attempt to dissuade the government from bringing an action will not be considered cooperation by the government. Neither are “ex post facto
” claims to have cooperated sufficient where the characteristics outlined above have not been satisfied.
Baer concluded by saying: “We know meaningful cooperation when we see it.” For an individual or entity involved in a government investigation, careful attention to the guidance outlined above is critical in successfully advocating for and receiving cooperation credit.