Cooperate with Government Investigations to Secure Reduction in Penalties

The Justice Department release new guidance to its FCA (False Claims Act) litigators which explains the manner in which the Department awards "credit" to defendants who cooperate with the Department during a FCA investigation. It includes a comprehensive list of the types of cooperation eligible for credit.

Justice wants to incentivize companies who voluntarily disclose misconduct and cooperate with its investigations. FCA defendants can merit a more favorable resolution by providing meaningful assistance to the Justice Department from voluntary disclosure (the most valuable form of cooperation) to various other efforts like sharing information gleaned from an internal investigation and taking remedial steps through enhanced compliance programs. Besides the formal voluntary disclosure program, the list includes"

1. Identifying individuals substantially involved in or responsible for the misconduct.
2. Disclosing relevant facts and identifying opportunities for Government to obtain evidence relevant to the Government's investigation that is not in the possession of the entity or individual or not otherwise known to the Government.
3. Preserving, collecting, and disclosing relevant documents and information relating to their provenance beyond existing business practices or legal requirements.
4. Identifying individuals who are aware of relevant information or conduct, including an entity's operations, policies and procedures.
5. Making available for meetings, interviews, examinations or depositions an entity's officers and employees who possess relevant information
6. Disclosing facts relevant to the Government's investigation gathered during the entity's independent investigation including attribution of facts to specific sources rather than a general narrative of facts, concerns, including rolling disclosures of relevant information.
7. Providing facts relevant to potential misconduct by third-party entities and third-party individuals.
8. Providing information in native format, and facilitating review and evaluation of that information if it requires special or proprietary technologies so that the information can be evaluated
9. Admitting liability or accepting responsibility for the wrongdoing or relevant conduct.
10. Assisting in the determination or recovery of the losses caused by the organization's misconduct.

Under the Justice Department's policy of "cooperation", the Department will take into account these kinds of activities in the form of a reduction in the damages multiplier and civil penalties.

Read more about the new or clarified policy here.