CEP Magazine (September 2022)

This month’s column is about something I hope you never have to address: cooperating with government officials in connection with an investigation into a compliance violation at your organization. In particular, it is common for a company to receive credit, in the form of a reduction in fines and penalties, if it cooperates with government investigators. But what exactly is meant by cooperation?

I always thought the concept of cooperation was rather straightforward and common sense, until I listened to some government speakers at a couple recent conferences. As one U.S. Department of Justice (DOJ) speaker explained it, cooperation means more than simply not obstructing the investigation—more than doing the bare minimum. And it sounds like DOJ has often been asked for cooperation credit when a company did little more than not obstruct.

Perhaps part of the problem is the word itself: cooperate. I looked it up in a few different dictionaries and was a bit surprised at the range of definitions. At the low end of the range of definitions was complying with someone’s requests. This seems to be what DOJ was describing as something that will not result in cooperation credit. Merely providing information upon request from the authorities is really the bare minimum and won’t get you any credit.

At the other end of the spectrum, some definitions refer to working jointly toward the same end. I doubt any organization has a mission that is identical to that of an enforcement agency. But, if we view the “end” to be (1) discovery of all relevant facts necessary to determine whether a violation occurred, or the full extent of a known violation, and (2) remediating the problem to minimize the risk of it happening again, you’ll probably meet their expectations.

Cooperation credit will be maximized with self-reporting, followed by fully investigating and voluntarily taking remediation actions before government investigators even begin their work. There is obviously a range of cooperation that could result in some credit all the way up to maximum credit. The idea of hiding anything from investigators or misleading them about the severity of an issue or the extent of remediation, in a misguided effort to “defend” the organization, is more often than not a losing strategy.

[View source.]