How The New FCA Cooperation Credit Guidelines Fall Short

The thing about a grab bag or the proverbial box of chocolates is that you never know what you are going to get. On May 7, 2019, the U.S. Department of Justice's published formal guidelines presaged by Deputy Attorney General Rod Rosenstein in a November 2018 speech on cooperation credit in False Claims Act cases.¹ And while we applaud the department's putting pen to paper on FCA enforcement guidance, we are left scratching our collective heads on what's in the offing.

White collar criminal defense practitioners will find nothing remarkable about the prospect of cooperation credit for voluntary self-disclosure. Indeed, for many years the principles of corporate prosecution² have laid out what constitutes cooperation and some programs – such as the Foreign Corrupt Practices Act corporate enforcement policy³ – suggest corporations that come forward may obtain a complete "pass" from prosecution.