In a recent speech at NYU Law School, Assistant Attorney General Leslie Caldwell attempted to provide guidance to companies seeking cooperation credit from the Justice Department. She warned of dire consequences if a company fails to cooperate, but stated that DOJ does “not expect companies to aimlessly boil the ocean” during internal investigations.
To receive cooperation credit, DOJ expects not only a timely and “thorough” internal investigation, but also identification of “the individuals actually responsible for the misconduct—be they executives or others—and the provision of all available facts relating to that misconduct.” Yet, Assistant AG Caldwell cautioned that some internal investigations have been “overly broad and needlessly costly,” interfering with DOJ’s ability to timely resolve matters. She repeatedly emphasized that the choice to conduct this internal investigation, the scope and timing of this investigation, and the decision to incur associated costs, remains entirely with the company.
To help companies walk the line between appropriately thorough and needlessly overbroad, Assistant AG Caldwell said that she directs prosecutors to share information with companies “where possible.” She then cited two cautionary tales of deficient cooperation – BNP Paribas’ nearly $9 billion penalty and Alstom’s $772 million penalty (“the largest criminal penalty in the history of the FCPA”) – calling these actions “facts that a company must consider in deciding whether to cooperate.”
Companies will thus remain in a tough position as they struggle to find the right balance, a problem further complicated by different regulators’ expectations regarding internal investigations.