On May 7, 2019, the Civil Division released guidance to the Department’s False Claims Act (“FCA”) litigators explaining how to credit defendants who cooperate during an FCA investigation. Under the policy, defendants can earn cooperation credit by voluntarily disclosing misconduct unknown to the government, cooperating in an ongoing investigation, and/or undertaking remedial measures. The guidance explains that cooperation credit will generally take the form of a reduction in the damages multiplier and civil penalties assessed, but added that DOJ may also notify relevant agencies of the defendant’s cooperative actions, so that those agencies can take the defendant’s conduct into account when crafting administrative remedies.
On May 20, 2019, Claire McCusker Murray, the Principal Deputy Associate Attorney General, made public comments addressing this guidance at the Compliance Week Annual Conference. Murray highlighted DOJ’s goal of promoting strong corporate compliance programs and stressed the importance of compliance officers and in-house attorneys who serve as the “first line of defense” in preventing misconduct. Murray also discussed DOJ’s efforts to incentivize robust corporate compliance programs in other contexts, to include the Criminal Division’s expansion of the FCPA Corporate Enforcement Policy to all criminal actions. She also previewed upcoming actions within the Antitrust Division, which she noted may provide incentives beyond leniency for good corporate citizenship and credit companies with proactive compliance programs instead of only “extraordinary prospective compliance measures.”