Dear FCPA Blog,
Thanks for the post about cooperation with the DOJ, which quoted from a recent talk by the DOJ’s Leslie Caldwell. Unfortunately, my real world experience in FCPA investigations and cooperation has looked slightly different.
I cannot contest any of the factual statements in the post. It is only the perspective and flavor of “what cooperation looks like” that may be seen from a different angle.
When client companies and I have opted to cooperate early on and open up all information and records to the DOJ investigative units, I have seen the FCPA investigative team to be less interested in whether facts or evidence show violations or point to evidence raising red flags, as to how the client (and lawyer also) is bowing and mewling in anguish and sorrow before the government.
Provided the client is willing to genuflect and cry out mea culpa and beg for mercy (all three are required) there can be a happy and acceptable outcome in correcting corporate deficiencies and reaching an early valid resolution.
Executives who have somewhat less capacity to grovel underfoot are punished with the promise of crippling expansions of the process including raids and countless subpoenas to uninvolved officers, employees, consultants and accountants.
My experience is that this is not based on early findings of probable cause, but rather a haughty outrage that there was insufficient willingness to self-immolate.