Cooperation in FCPA Investigations – Some Thoughts on Current Incentives and Expectations
The U.S. Department of Justice’s updated Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) establishes that “full,” “proactive,” and “voluntary” cooperation by companies in FCPA investigations is necessary to earn CEP incentives, including declination. Even absent self-disclosure, such cooperation (paired with effective remediation) can result in significant fine reductions. Companies undergoing FCPA investigations face various considerations when undertaking cooperation efforts under current DOJ and SEC expectations.
Companies Must Build Cooperation Credit.
The CEP states that “a company starts at zero cooperation credit and then earns credit for specific cooperative actions.” These actions accrete over the course of the investigation and the DOJ “assess[es] the scope, quantity, quality, and timing of cooperation based on the circumstances of each case.”
Are Aggravated Circumstances Present?
CEP incentives depend on whether “aggravating circumstances” are present; if they are, companies must engage in “extraordinary” cooperation with the DOJ’s investigation. DOJ officials have stated that whether cooperation is “extraordinary” is measured by general concepts such as “immediacy, consistency, degree, and impact.” More recently, DOJ personnel have noted that “every case is different” but that “[w]e provide the greatest benefits to those that act with urgency and truly go above and beyond.”
What Actions Qualify Companies for Cooperation Credit?
DOJ officials have encouraged companies to examine recent FCPA cases for examples of cooperation that benefits companies under the CEP. A review of such cases, including SAP, Albemarle, and the Gartner SEC settlement, reveals some common themes:
In March, AAG Nicole Argentieri highlighted providing DOJ with data resulting from imaging of employee phones and computers, including messages from external messaging applications as “proactive, impactful cooperation [that] makes a real difference in [the DOJ’s] ability to advance” its own investigations
Providing “regular, prompt, and detailed updates” regarding ongoing internal investigations, rolling production of information, and de-confliction actions
Producing documents “from multiple foreign countries expeditiously, while navigating foreign data privacy and related laws”
“Making foreign-based employees available for interviews in the United States and encouraging cooperation by former employees”
Conducting complex financial analyses at DOJ’s request, organizing voluminous documentation, and translating non-English documents for production
Member, FCPA and International Anti-Corruption Practice Lead, Miller & Chevalier, Washington, DC