DOJ Expectations from Companies Cooperating with Criminal Investigations

Last week, Assistant Attorney General Leslie R. Caldwell, speaking at the New York City Bar’s fourth annual White Collar Crime Institute in Manhattan, candidly expressed what the government is looking for from companies wanting credit for cooperating in criminal investigations. She noted, “While every internal investigation will be unique, and depend on the scope of misconduct and the size and nature of the corporation, there are a few aspects that are universal:

• We expect you to learn the relevant facts, assuming they are learnable.
• If you choose to cooperate with us, we expect that you will provide us with those facts, be they good or bad.
• Importantly, that includes facts about individuals responsible for the misconduct, no matter how high their rank may be.
• We expect timely provision of evidence. What does that mean? That doesn’t mean you need to call us on day one. In most cases it is in everyone’s interest for there to be an orderly internal investigation. Exact timing varies with the facts, but once companies know the facts, we do not expect them to delay providing them to us.”

Ms. Caldwell also said, “A company’s cooperation can be particularly helpful where the criminal conduct continued over an extended period of time, and the culpable or knowledgeable personnel and/or the relevant documents may be dispersed or located abroad. The difficulty of investigating under these circumstances makes your cooperation especially useful to us. Cooperation in these cases means helping to remove and overcome the barriers to identifying and producing the relevant information that we need to conduct a meaningful investigation. A company can do this by:

• Making relevant documents available where the department would otherwise have difficulty in obtaining them, either through protracted litigation or other compulsory process.
• This is especially true for evidence that is located abroad. While we recognize there may be some real legal hurdles to the provision of some types of data and information, subject to foreign law, your first instinct when providing cooperation should be “how can I get this information to the government?” It should not be a kneejerk invocation of foreign data privacy laws designed to shield critical information from our investigation.
• We have taken recent steps to increase our knowledge of foreign data privacy laws, and we will question what we think are overbroad assertions about those laws."

In addition to illustrating his points with recent cases, she added what cooperation is not. Caldwell explained, “Compliance with our subpoenas is not cooperation. Public relations talking points are not cooperation. A whitewash about the facts of any individual’s involvement is not cooperation. We do not want you to decide to withhold information about what seems on its face to be wrongdoing just because you or your clients are able to imagine a hypothetical scenario in which there could be an innocent explanation for the conduct.” Although Caldwell provided very useful advice, any potential wrongdoing discovered by a company is a delicate matter requiring careful thought.

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