The following are prepared remarks by Deputy Assistant Attorney General Richard A. Powers delivered February 7, 2020.[1] He discussed recent litigation and enforcement actions; however, the following excerpt focuses on the portion of his remarks related to cooperation.
“The [Antitrust] Division understands that our cases often are built upon the cooperation of companies and individuals who have chosen to do the right thing.”
“The Justice Manual rightly notes that ‘cooperation can be a favorable course for both the government and the corporation.’ Among the potential benefits, the company receives the opportunity to earn credit for its cooperation efforts. Full, truthful, and continuing cooperation allows the Division and its partners to ‘quickly uncover and address’ antitrust conspiracies by using the cooperation of conspirators against their coconspirators. But it’s not a free ride—in order to attain the benefits of cooperation, companies and individuals must meaningfully assist the Division’s investigation through truthful, thorough, and timely cooperation. I’d like to take this opportunity to explain and clarify the Division’s expectations concerning cooperation on a number of fronts.
“The Division recently updated the language in our model plea agreements that relate to cooperation. The Division’s model plea agreements have long committed corporate and individual defendants to ‘full, truthful, and continuing cooperation.’ Those obligations have been clarified in two areas.
“First, the corporate model was updated to prohibit a corporate defendant from making public statements contradicting its acceptance of responsibility through the facts described in the information or the factual basis of the plea agreement. Companies resolving antitrust charges with the Division are pleading guilty to a crime. Turning around and disclaiming any wrongdoing is inconsistent with their admissions in the plea agreement, their acceptance of responsibility, and their ongoing cooperation obligations. The Division’s model has been updated with an additional provision to make those obligations clear. That said, the model agreement is clear that this provision in no way affects the paramount obligation of company employees to provide full and truthful information, without falsely implicating any person, and to testify truthfully.
“Second, both the corporate and individual plea agreement models were updated to clarify any confusion about what has always been the Division’s expectation of ‘full, truthful, and continuing cooperation.’ It is important that we, as enforcers, are getting the benefit of the bargain when we enter plea agreements. Those entering and benefiting from plea agreements must provide full cooperation, to the extent possible, in pursuing cases against other conspirators. Accordingly, if the opportunities arise, individuals subject to a corporate plea agreement’s terms, such as current employees, and individual defendants cooperating under a plea agreement may be asked to assist the Division with affirmative investigative opportunities.
“Participation in covert techniques such as recording conversations has always fit within the ambit of full, truthful, and continuing cooperation. When covert investigative opportunities are presented, we expect individuals to assist in them in order to be fully cooperative and expect their cooperating employers, where appropriate, to help facilitate such assistance. There may be circumstances where such covert investigative measures may not be feasible—for example, when there are legitimate safety concerns or legal considerations in other jurisdictions. In those instances, the Division will take into consideration those concerns in assessing the individual’s and employer’s good faith and complete cooperation.
“Full cooperation also requires that cooperating companies and individuals report all pertinent facts whether favorable or unfavorable. For our prosecutors to consider cooperation at the charging stage according to the Justice Manual, ‘the company must identify all individuals substantially involved in or responsible for the misconduct at issue’ and provide ‘all relevant facts relating to that misconduct.’ By contrast, cooperation is not a mitigating factor for companies that decline ‘to learn of such facts’ or to provide ‘complete factual information about the individuals substantially involved in or responsible for the misconduct.’
“As the Justice Manual mandates, Division attorneys meticulously review any information provided and compare it to the results of our own investigation to ‘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.’ Underlying potential cooperation credit is a simple predicate: be candid and provide complete information even when the facts may be unfavorable for your client.
“Candor is particularly important when counsel makes representations to our prosecutors about the company’s efforts and the evidence. Full and truthful representations can pave the way for a fine reduction or, if warranted under the Justice Manual’s Principles of Federal Prosecution of Business Organizations, resolution by deferred prosecution agreement rather than by guilty plea. To be clear, ‘[c]ooperation is a potential mitigating factor, but it alone is not dispositive.’ Nevertheless, those who misrepresent or shade the evidence, or omit relevant facts will not only foreclose any credit for cooperation at the charging stage, but also impact the Division’s assessment of what amounts to an appropriate fine.”