Corporate Cooperation And Compliance Effectiveness

One of the principal responsibilities of the governing board in the context of a federal regulatory investigation is whether, and if so to what extent, it should cooperate with the government in order to demonstrate organizational good faith and reduce the prospects of defending a criminal or civil complaint. While these issues were most formally introduced in September, 2015 with the release of the Yates Memorandum, three separate September public presentations by senior Department of Justice officials shed additional light on this important governance topic.

It is well understood that the Yates Memorandum provides clear incentives for the corporation under investigation to provide the government with “all relevant facts relating to the individuals responsible for the (alleged) misconduct.” In recent comments DOJ Fraud Division Chief Andrew Weissmann warned that the government is increasingly attentive to potential self-reporting misconduct; i.e., situations where