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
Cooperation must necessarily help the government in its investigation. Baer explained that proactive cooperation could include the following:
2.TimelyCooperation 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 ImpactThe 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 ResultThe 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.
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