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Can Cooperation Expose a Company to a Defamation Claim?
A criminal charge or civil enforcement action against a company can be devastating. Charges may, for example, lead to debarment from federal programs ' a corporate death sentence to health care companies and government contractors. But the U.S. Department of Justice (DOJ), the U.S. Securities Exchange Commission (SEC) and other enforcement agencies have long touted the benefits of cooperation for companies under investigation.
In deciding whether to charge a company, the DOJ's “Principles of Federal Prosecution of Business Organizations” ' the so-called the “Filip factors” ' instruct prosecutors to consider, among other things, “the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents.” (See USAM 9-28.300). Thus, when faced with allegations of wrongdoing, companies and their outside counsel generally will conduct their own investigation and report their findings to the government.
In the past, a presentation of the facts and evidence tended to be viewed as cooperation. Now, the government expects more. As noted by Criminal Division Assistant Attorney General Leslie Caldwell just a few months ago, the DOJ “expect[s] cooperating companies to identify culpable individuals ' including senior executives if they were involved ' and provide the facts about their wrongdoing.” See Assistant Attorney General Leslie R. Caldwell Delivers Remarks at New York University Law School's Program on Corporate Compliance and Enforcement,” April 17, 2015, http://1.usa.gov/1UUMtGx.
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