Corporate Crime and Cooperation
Document Type
Article
Publication Title
Business Lawyer
Publication Date
2024
Abstract
Over the past few decades as the number of Foreign Corrupt Practices Act (FCPA) cases has steadily climbed, and the fines associated with FCPA dispositions have skyrocketed, the U.S. Department of Justice (DOJ) has regularly issued guidance about how companies could or should assist the government in reaching a resolution to an FCPA investigation. It is now taken as a given that a company will cooperate with the DOJ in order to receive the best outcome and settlement. What "cooperation" entails has differed over the past few decades, but what is no longer on the table is the option NOT to cooperate with the DOJ, or any parallel investigations by the U.S. Securities and Exchange Commission or even foreign regulatory agencies. The reason companies cooperate is to be afforded the "carrot" of cooperation credit, rather than face the "stick" of increased fines and punishment. Cooperation credit is a major factor in corporations' decisions regarding all aspects of their own internal investigations, including whether to voluntarily disclose potential violations of the FCPA, what documents to produce to the government and when, and whether to allow the government to interview (and potentially indict) executives. The recent DOJ Memorandum issued by Deputy Attorney General Lisa Monaco doubles down on the notion that companies must be swift in voluntarily disclosing violations, quick to point fingers at executives involved, and must produce to the government potentially damning documents immediately upon discovery. The Monaco Memo seemingly moves the needle further in favor of the government; meaning, a company must do more to meet the standard of "cooperation" in order to be eligible for cooperation credit. As the standard for cooperation becomes harder to attain, more corporations may push back. The risk to the DOJ of making cooperation credit too elusive is that the DOJ likely does not have the resources to engage in full-scale investigations of companies. Rather, the government relies upon companies to voluntarily disclose violations and to perform internal investigations at their own expense. What then happens when companies refuse to cooperate? When the carrot becomes too elusive, will companies begin taking their odds with the stick? This Article outlines the historical underpinnings of corporate cooperation, and expands upon the literature considering the structural, constitutional, and normative issues with corporate cooperation.
Recommended Citation
Karen E. Woody, Corporate Crime and Cooperation, 79 Bus. Law. 65 (2024).