Cooperation is a mitigating factor, by which a corporation—just like any other subject of a criminal investigation—can gain credit in a case that otherwise is appropriate for indictment and prosecution. Of course, the decision not to cooperate by a corporation (or individual) is not itself evidence of misconduct, at least where the lack of cooperation does not involve criminal misconduct or demonstrate consciousness of guilt (e.g., suborning perjury or false statements, or refusing to comply with lawful discovery requests). Thus, failure to cooperate, in and of itself, does not support or require the filing of charges with respect to a corporation any more than with respect to an individual.

A. General Principle: The Department encourages and rewards cooperation. Credit for cooperation takes many forms and is calculated differently based on the degree to which a corporation cooperates with the government's investigation and the commitment that the corporation demonstrates in doing so. A corporation’s cooperation may, as part of a holistic analysis, impact the appropriate form of the resolution as well as the fine range and fine amount. [1]

Companies that identify significant facts but delay their disclosure will place in jeopardy their eligibility for cooperation credit. Corporations seeking cooperation credit ultimately bear the burden of ensuring that documents and information are provided in a timely manner to prosecutors.

In order for a corporation to receive any consideration for cooperation under this section, the corporation must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and timely provide to the Department all relevant facts relating to that misconduct. If a corporation seeking cooperation credit declines to learn of such facts or to provide the Department with complete factual information about the individuals involved in or responsible for the misconduct, its cooperation will not be considered a mitigating factor under this section. Nor, where a corporation is prosecuted in such a case, will the Department support a cooperation-related reduction at sentencing. See U.S.S.G. § 8C2.5(g), cmt. (n. 13) (“A prime test of whether the organization has disclosed all pertinent information” necessary to receive a cooperation-related reduction in its offense level calculation “is whether the information is sufficient … to identify … the individual(s) responsible for the criminal conduct.”). [2]

Likewise, production of evidence to the government that is most relevant for assessing individual culpability should be prioritized. If the company is unable to identify all relevant individuals or provide complete factual information despite its good faith efforts to cooperate fully, the organization may still be eligible for cooperation credit. See U.S.S.G. § 8C2.5(g), cmt. (n. 13) (“[T]he cooperation to be measured is the cooperation of the organization itself, not the cooperation of individuals within the organization. If, because of the lack of cooperation of particular individual(s), neither the organization nor law enforcement personnel are able to identify the culpable individual(s) within the organization despite the organization’s efforts to cooperate fully, the organization may still be given credit for full cooperation.”). For example, there may be circumstances where, despite its best efforts to conduct a thorough investigation, a company genuinely cannot get access to certain evidence or is legally prohibited from disclosing it to the government. Under such circumstances, the company seeking cooperation will bear the burden of explaining the restrictions it is facing to the prosecutor.

In assessing a corporation’s cooperation during a criminal investigation, prosecutors should consider the following non-exhaustive list of factors, exercising appropriate discretion regarding the weight to be attributed to each factor, as well as any additional factors that may be relevant for consideration given the facts of a particular case. The greatest amount of cooperation credit will generally be provided when companies cooperate through the following actions: [3]

1. 1. Timely disclosure of all facts relevant to the wrongdoing at issue, including:
   1. a. facts gathered during a corporation’s internal investigation, if the company chooses to conduct one;
   2. b. attribution of facts to specific sources, rather than a general narrative of the facts; and
   3. c. identification of all individuals involved in or responsible for the misconduct at issue, regardless of their position, status, or seniority, including the corporation’s officers, employees, customers, competitors or agents and third parties, and all relevant facts relating to the misconduct and the involvement by those individuals;
2. 2. Proactive cooperation, rather than reactive; that is, timely disclosure of all facts that are relevant to the investigation and, where the corporation is aware of opportunities for the Department to obtain relevant evidence not in the corporation’s possession and not otherwise known to the Department, timely identification of those opportunities;
3. 3. Timely voluntary preservation, collection, and disclosure of relevant documents and information relating to their provenance, including (a) disclosure of documents located overseas, the locations in which such documents were found, their custodians, and who authored and found the documents, (b) facilitation of third-party production of documents, and (c) where requested, provision of translations of relevant documents in foreign languages;
   1. a. Where a corporation claims that disclosure of overseas documents is prohibited due to data privacy, blocking statutes, or other reasons related to foreign law, the corporation bears the burden of establishing the prohibition and identifying reasonable alternatives such that the Department receives the necessary facts and evidence to continue its investigations and prosecutions. Moreover, a corporation should work diligently to identify all available legal bases to provide such documents;
   2. b. Prosecutors also should consider the extent to which a corporation enforced effective document and data retention policies in order to preserve, collect, and disclose documents, data, and other evidence relevant to the government’s investigation (including as to third-party messaging data, regardless of whether the data is kept on corporate or personal devices that are used for work purposes);
4. 4. De-confliction of witness interviews and other investigative steps that a corporation takes as part of its internal investigation, should it conduct one, to prevent the corporation’s investigation from conflicting or interfering with the Department’s investigation; [4] and
5. 5. Where appropriate and possible, making corporate officers and employees who possess relevant information available for interviews by the Department; this includes, officers, employees, and agents located overseas, as well as former officers and employees, and, where possible, the facilitation of interview of third-party witnesses.

B. Comment: A cooperating corporation must earn credit for cooperation; it is not provided as a matter of course. In other words, a corporation starts at zero cooperation credit and then earns credit for specific cooperative actions, rather than starting at maximum available credit that is decreased based on deficiencies in cooperation. A lack of genuine cooperation will result in a corporation receiving no credit or minimal credit, depending on the extent to which the cooperation was lacking. Moreover, a corporation that fails to demonstrate timely and full cooperation at the earliest opportunity reduces its ability to earn cooperation credit. For avoidance of doubt, a corporation is not required to waive its attorney-client privilege or attorney work product protection to be eligible to engage in cooperation or satisfy any threshold. See JM 9-28.720.

In investigating wrongdoing by or within a corporation, a prosecutor may encounter several obstacles resulting from the nature of the corporation itself. It may be difficult to determine which individual took which action on behalf of the corporation. Lines of authority and responsibility may be shared among operating divisions or departments, and records and personnel may be spread throughout the United States or even among several countries. Where the criminal conduct continued over an extended period of time, the culpable or knowledgeable personnel may have been promoted, transferred, or fired, or they may have quit or retired. Accordingly, a corporation’s cooperation may be critical in identifying potentially relevant actors and locating relevant evidence, among other things, and in doing so expeditiously.

This dynamic—i.e., the difficulty of determining what happened, where the evidence is, and which individuals took or promoted putatively illegal corporate actions—can have negative consequences for both the government and the corporation that is the subject or target of a government investigation. More specifically, because of corporate attribution principles concerning actions of corporate officers and employees, see JM 9.28-210, uncertainty about who authorized or directed apparent corporate misconduct can inure to the detriment of a corporation. For example, it may not matter under the law which of several possible executives or leaders in a chain of command approved of or authorized criminal conduct; however, that information if known might bear on the propriety of a particular disposition short of indictment of the corporation. It may not be in the interest of a corporation or the government for a charging decision to be made in the absence of such information, which might occur if, for example, a statute of limitations were relevant and authorization by any one of the officials were enough to justify a charge under the law.

For these reasons and more, cooperation can be a favorable course for both the government and the corporation. Cooperation benefits the government by allowing prosecutors and federal agents, for example, to avoid protracted delays, which compromise their ability to quickly uncover and address the full extent of widespread corporate crimes. This leads to timely resolution of investigations, which promotes public confidence, maximizes deterrence, and allows ongoing deficiencies at the corporation to be corrected and preventive measures established. With cooperation by the corporation, the government may be able to reduce tangible losses, limit undue damage to reputation, and preserve assets for restitution. At the same time, cooperation may benefit the corporation—and ultimately shareholders, employees, and other often blameless victims—by enabling the government to focus its investigative resources in a manner that may expedite the investigation and that may be less likely to disrupt the corporation’s legitimate business operations. In addition, cooperation may benefit the corporation by presenting it with the opportunity to earn credit for its efforts.

The requirement that companies cooperate completely as to individuals does not mean that prosecutors should wait for corporations to deliver the information about individual wrongdoers and then merely accept what companies provide. To the contrary, prosecutors proactively investigate individuals at every step of the process—before, during, and after any corporate cooperation. Prosecutors should vigorously review any information provided by companies and compare it to the results of their own investigation, in order to best ensure that the information provided is indeed complete and does not seek to minimize, exaggerate, or otherwise misrepresent the behavior or role of any individual or group of individuals.

Prosecutors should strive to obtain from a cooperating corporation as much information as possible about responsible individuals before resolving the corporate case. In addition, the corporation’s continued cooperation with respect to individuals may be necessary post-resolution. If so, the corporate resolution agreement should include a provision that requires the corporation to provide information about all individuals substantially involved in or responsible for the misconduct, and that is explicit enough so that a failure to provide the information results in specific consequences, such as stipulated penalties and/or a material breach.

[cited in JM 9-47.120]

[updated March 2023]

[1] Of course, in addition to cooperation in an investigation, the Department encourages timely voluntary self-disclosure of criminal wrongdoing, see JM 9-28.900, even before all facts are known to the corporation, and recognizes that such early disclosures are unlikely to be a complete disclosure of all facts relevant to the wrongdoing at issue. However, the Department does expect that, in such circumstances, the company will move in a timely fashion to conduct an appropriate investigation if the company chooses to conduct one and provide timely factual updates to the Department.

[2] With respect to what is considered “timely” for purposes of cooperation, prosecutors should consider the definition under U.S.S.G. § 8C2.5(g), Application Note 13, which specifically notes that “[t]o qualify for a reduction under subsection (g)(1) or (g)(2), cooperation must be both timely and thorough. To be timely, the cooperation must begin essentially at the same time as the organization is officially notified of a criminal investigation.”

[3] In assessing a corporation’s cooperation, prosecutors also should consider any guidance that is specific to a particular component’s area of practice (see, e.g., JM 9-47.120).

[4] Although the Department may, where appropriate, request that a corporation refrain from taking a specific action for a limited period of time for de-confliction purposes, the Department will not take any steps to affirmatively direct a company’s internal investigation efforts. Additionally, when the Department does make a request to a corporation to defer investigative steps, such as the interview of employees or third parties, such a request will be made for a limited period of time and be narrowly tailored to a legitimate investigative purpose (e.g., to prevent impeding of a specified aspect of the Department’s investigation). Once the justification dissipates, the Department will promptly notify the corporation that the Department is lifting the request.