On May 7, 2019, the U.S. Department of Justice ("DOJ")
released formal guidance regarding cooperation credit for
defendants in False Claims Act ("FCA") investigations.
The new policy defines the types of conduct that the DOJ will
recognize as "cooperation" and provides some guidance
regarding how such cooperation should be credited in the context of
monetary settlements of FCA claims. The DOJ will retain
considerable discretion regarding when and how much credit to
award.
FCA settlements have not typically included a formal cooperation
credit component, and this guidance may signal a change in how the
DOJ intends to approach FCA settlements, perhaps more closely
following the model used in criminal cases, where cooperation
credit has long been explicitly considered and quantified in
ultimate resolutions. Should that be the case, the DOJ may —
as it has in criminal cases — include additional detail in
future FCA settlements to publicize and quantify the effects of
