The United States Department of Justice (DOJ) has issued new guidelines (available HERE) regarding cooperation and credit for self-disclosure in False Claims Act matters. The guidelines outline the factors to be considered by the DOJ and the “credit” that may be provided by DOJ attorneys to entities and individuals that “voluntarily self-disclose misconducts that could serve as the basis of False Claims Act (FCA) liability and/or administrative remedies, take affirmative steps to cooperate with FCA investigations and settlements, or take adequate and effective remedial measures.”
Similar to its other publications, the DOJ is issuing guidelines which appear to reflect its interest in incentivizing companies and individuals to voluntarily disclose misconduct to the government.
The guidelines identify the following as activities that the DOJ may take into account in determining whether an entity/individual under a False Claims Act investigation qualifies for cooperation credit. Such factors include, but are not limited to:
- identifying individuals substantially involved in or responsible for misconduct, disclosing relevant facts and identifying opportunities for the government to obtain evidence relevant to government investigation that is not otherwise known to the government,
- disclosing relevant facts to the government’s investigation gathered during an entity’s independent investigation,
- admitting liability or accepting responsibility for wrongdoing,
- making officers and/or employees who possess relevant information available for interviews or depositions
- assisting the DOJ in the determination of discovery of the losses caused by the organization’s misconduct
- taking appropriate remedial actions in response to FCA violation. Such remedial measures include: performing a thorough analysis of the underlying conduct, implementing or improving an effective compliance program designed to ensure the misconduct does not reoccur, and appropriately disciplining or replacing those identified by the entity as responsible for the misconduct either through direct participation or failure in oversight.
The value of credit awarded to an entity or individual by the DOJ will vary depending on the facts and circumstances of each case.