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DOJ's Definition for Extraordinary Cooperation 'Leaves a Little to Be Desired,' Lawyer Says

Corporations can take a number of steps to make sure their compliance procedures will allow them to qualify for potential declinations under DOJ’s new corporate enforcement policies, lawyers said this week. But they also said certain parts of the new DOJ policies could be clearer, including the agency’s definition for “extraordinary” cooperation during an investigation.

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The agency last month outlined new criteria companies must meet to qualify for declinations -- a decision by DOJ not to prosecute -- even in cases where there are aggravating factors (see 2301190031). Some law firms said the new policies could substantially increase compliance incentives and may lead to more voluntary self-disclosures (see 2302060034).

Tiffany Wynn, a white collar lawyer with Crowell & Moring, said the agency is “allocating resources and energy towards being clear about the rewards for coming forward.” The new guidelines, which represented the first significant changes to the Criminal Division’s corporate enforcement policies since 2017, provide “new and concrete incentives for companies to self-disclose wrongdoing and meaningfully cooperate with DOJ investigations,” Wynn said.

“The central theme is as subtle as a heart attack,” she said during a March 8 webinar hosted by the law firm. “DOJ is pushing companies to come forward and self-report wrongdoing.”

Notably, the policies allow companies with “aggravating” factors to qualify for a declination if they provide the agency with “extraordinary” cooperation -- a term some lawyers say is vague. Wynn said companies may achieve extraordinary cooperation by how quickly they submitted their disclosure, how consistently they cooperated with DOJ and how impactful their cooperation was.

“I think there's a lot to be seen in terms of how that will actually operate in practice,” she said. “I think it's a squishy distinction that seems perhaps helpful directionally but leaves a little to be desired in terms of clarity.”

Companies will have to meet several other DOJ criteria to qualify for a declination, including “timely” disclosures of “all non-privileged facts,” said Rebecca Ricigliano, a white collar lawyer with Crowell and former assistant U.S. attorney in the U.S. Attorney’s Office for the Southern District of New York. But she also warned that lawyers should “exercise caution” not to “waive privilege” or other protections during their efforts to cooperate.

“DOJ is going to require specific, non-privileged facts and sourcing where possible,” Ricigliano said. “So balancing that is going to be an important consideration for company counsel during the cooperative period.”

She also said companies should be “proactive” if they want to qualify for a declination. “Don't just sit back and react. Identify and be in touch with your DOJ prosecutors in the Criminal Division,” Ricigliano said. “Afford them opportunities to explore with respect to their own independent investigation that's going on. Don't just react to their requests.”

For global companies, that may mean collecting all foreign-language documents relevant to the investigation, she said, and making sure they are officially translated. “You can't hide behind the fact that there are relevant documents in a foreign language outside of the U.S. borders,” Ricigliano said. “There's a specific provision in the policy that requires corporate counsel and companies to explain what efforts they have done and if they have truly hit a roadblock against foreign privacy or blocking statutes and if there are ways around them.”

The agency also recently announced “significant changes” to how it assesses corporate compliance programs’ approach to communications platforms, which could also affect whether the agency offers a declination (see 2303030056). This may mean heightened DOJ expectations for companies to keep records of WhatsApp messages, said Trina Fairley Barlow, a Crowell lawyer who works on government contracting and other issues.

“This is an issue that prosecutors are going to be looking into as they investigate wrongdoing,” she said. “What have companies done to ensure that that type of information is preserved?”

Companies should know how their employees use technology to communicate, she said, and make sure they can access those records. “Over the past 10 years, or certainly through the pandemic and afterwards, we've just seen a very, very high increase of employees using other types of apps on their devices and otherwise to communicate,” she said. “And so it's really important to do an assessment, because you can't fix what you don't know.”