Blog
Should You Cooperate?
Cooperation is not a strategy. It is a posture, and the distinction determines whether a company emerges from a federal investigation diminished or dissolved. The instinct to cooperate, to present oneself as forthcoming, antedates any analysis of whether cooperation actually serves the company’s interest in a particular case. The question deserves more sustained attention than it typically receives.
On March 10, 2026, the Department of Justice released its first department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy. The framework applies to all corporate criminal matters except antitrust violations, supersedes every component-specific and district-specific policy previously in effect, and establishes a single set of rules governing what the government will offer in exchange for a company’s cooperation. The stated purpose is predictability. Whether it delivers predictability is a separate matter.
The Department-Wide Corporate Enforcement Policy
The policy organizes resolutions into three tiers. The first produces a declination of prosecution. To qualify, a company must voluntarily self-disclose the misconduct to an appropriate DOJ component before the government discovered it independently, before any imminent threat of disclosure or investigation, and within a reasonably prompt period after the company became aware of the problem. The company must then cooperate fully with the investigation. It must remediate the misconduct in a timely and appropriate manner. And there must be no aggravating circumstances, a category that includes the nature and seriousness of the offense, the pervasiveness of the misconduct, and criminal adjudications or resolutions involving similar conduct by the same entity, with no stated limitation on the look-back period for recidivism.
The second tier, designated the “near miss,” applies when the company cooperated and remediated but fell short of the declination requirements. Perhaps the disclosure did not qualify as voluntary under the policy’s technical definition. Perhaps aggravating factors existed that the company could not eliminate. In these cases, the government must offer a non-prosecution agreement with a term of fewer than three years, must not require an independent compliance monitor, and must reduce the fine by fifty to seventy-five percent off the low end of the Sentencing Guidelines range. The previous Criminal Division policy had guaranteed a seventy-five percent reduction. The new policy introduced a band, which grants prosecutors discretion they did not previously possess.
The third tier applies to companies that did not self-disclose or failed to satisfy the cooperation and remediation requirements. Prosecutors retain discretion over the form, term, and monetary penalty of the resolution, with a cap of fifty percent off the Guidelines range for companies that cooperated and remediated even without an eligible disclosure.
Before the first filing, before the board had reviewed the internal investigation findings, the framework appears to offer a clean exchange: information for leniency. The closer one examines the mechanics of that exchange, the more its clarity recedes.
Voluntary Self-Disclosure
The policy’s first requirement is its most consequential. The company must self-disclose before the government discovers the misconduct through independent means, and the disclosure must occur within a reasonably prompt window after the company itself becomes aware. Neither term carries a fixed definition. “Reasonably prompt” is evaluated by prosecutors who possess information the company does not have and who are under no obligation to share it.
What a company knows at the moment it must decide whether to disclose is, in most of the situations we encounter, less than what it will know six months later. A compliance officer identifies an irregularity in a foreign subsidiary. Outside counsel is retained. The irregularity might constitute a violation, or it might be a recordkeeping error, or it might occupy the territory between those categories where the evidence (if we are being precise, and precision is what the situation demands) supports neither conclusion with confidence. The company must decide whether to report this ambiguity to the government and accept the consequences of that report, or to continue investigating and risk losing its eligibility for a declination.
We approach this calculation differently than the conventional recommendation suggests. The standard advice is to disclose early, because the policy rewards early disclosure. This is correct as a reading of the text. It is incomplete as a description of the situation a company actually faces. A disclosure is the beginning of a relationship with prosecutors who will evaluate every subsequent decision the company makes. A premature disclosure, followed by an internal investigation that reveals the problem was smaller than initially feared, or larger, or categorically different, creates complications that the policy does not address and that the prosecutors administering it will not forget. The DOJ will not say this. But in our observation, a measured disclosure accompanied by a credible internal investigation produces better outcomes than a rushed disclosure the company cannot support with evidence.
Whether this holds outside the districts where we primarily practice is a question I am not prepared to answer with certainty.
The more common error is not the failure to disclose. It is the failure to prepare for what disclosure initiates. A company that self-reports to the DOJ has volunteered to be examined. The examination does not end when the disclosure is accepted. It ends when the prosecutors are satisfied, and the timeline for their satisfaction is not the company’s to determine.
Full Cooperation and Its Costs
The policy defines cooperation with unusual specificity. The company must identify every individual involved in the misconduct, regardless of position or seniority, including officers, employees, agents, and third parties. It must provide all relevant non-privileged facts. It must preserve and produce documents, facilitate the production of overseas materials, make personnel available for interviews, and refrain from any action that conflicts with the government’s investigation.
The word that matters most in that definition is all.
A company cooperating under this policy is conducting a substantial portion of the government’s investigation at the company’s expense. Outside counsel reviews the company’s own documents, interviews the company’s employees, and presents the findings to prosecutors who then assess whether the presentation was sufficiently complete. The most recent revision of the policy acknowledges that the DOJ will consider the size, sophistication, and financial condition of the cooperating company when evaluating the scope and timing of cooperation. How that consideration operates in practice remains an open question, though not one the company can afford to leave unanswered before it commits to the process.
Privilege, Waiver, and the Line Between Them
The DOJ’s Justice Manual states that eligibility for cooperation credit is not predicated upon the waiver of attorney-client privilege or work product protection. Prosecutors are directed not to request such waivers. The company need not produce counsel’s interview memoranda or notes.
The policy means what it says. Courts, however, have demonstrated that the boundary between disclosing facts and disclosing privileged analysis is thinner than the policy implies. In the Cognizant matter, the Southern District of New York concluded that outside counsel’s detailed oral summaries of witness interviews to the DOJ and SEC constituted a waiver of work-product protection over the underlying notes and memoranda. The company had cooperated in good faith. The cooperation cost it the ability to assert privilege over its internal investigation files when its former executives (who, it should be noted, were the subjects of the criminal indictment the government filed after the company’s cooperation had concluded, and who stood to benefit from precisely the materials the company could no longer protect) sought those documents in their own defense.
The information a company shares in the name of cooperation cannot be retrieved. The only safeguard is the care with which the disclosure is structured from the outset.
The practical challenge is that prosecutors evaluating cooperation quality are attuned to the difference between a company that provides genuine factual transparency and a company that offers carefully curated summaries designed to satisfy the letter of the requirement while withholding the substance. Counsel walking this line must communicate enough to demonstrate that the investigation was thorough and the disclosure complete, without communicating so much that the disclosure becomes a waiver of the protections the policy claims to preserve. High-level conclusions and factual summaries presented without reference to specific witness statements or counsel’s analytical process represent the safest approach, though even this formulation does not eliminate the risk.
And the risk is not symmetrical. A company that cooperates insufficiently loses its eligibility for a declination. A company that cooperates too generously may lose its privilege, which means it has surrendered its defenses in civil litigation, in shareholder suits, and in any subsequent proceeding where the internal investigation files become discoverable. The CEP does not weigh these exposures against each other. The company must.
There is a particular silence in the room after a board has voted to self-disclose. The decision is finalized. The consequences have not yet arrived.
Timing and Procedural Constraints
The CEP’s 120-day safe harbor for whistleblower scenarios permits a company to retain declination eligibility even where a whistleblower has already reported to the DOJ, provided the company discloses as soon as reasonably practicable and no later than 120 days after receiving the internal report. For a company with operations in several countries and records in multiple languages, the document review alone may consume that entire window before counsel has formed a preliminary assessment of the underlying facts.
The more fundamental constraint is that the timing of a voluntary disclosure determines not merely whether the company qualifies under the policy, but how the company is perceived by the prosecutors who administer it. A disclosure that arrives while the government is already investigating, even if the company did not know about the investigation, falls outside the voluntary self-disclosure definition. The policy does not make exceptions for good faith ignorance on this point.
When the Answer Is No
Not every investigation warrants cooperation beyond what legal process compels. The Justice Manual is explicit: a corporation’s decision not to cooperate is not evidence of misconduct and does not, standing alone, support the filing of charges. The government can compel production through subpoenas. It cannot compel the voluntary disclosures that the CEP rewards.
A company that believes the conduct under investigation was lawful, or that the government’s theory is flawed, may determine that voluntary cooperation concedes a position it does not need to concede. This is a defensible posture. It requires a confidence in the facts that, for reasons the preceding sections describe, the company may not yet possess. There are exceptions, though in practice they tend to confirm the rule.
Most people do not call until the subpoena has already arrived. The envelope carries a return address that belongs to a federal agency, and the business owner reads it at a moment when careful analysis feels like the last thing the situation permits. By the time the document reaches counsel, the company has often already responded to preliminary inquiries from investigators, sometimes without appreciating that those conversations constituted part of the investigation. Three calls in one week to a company in the Eastern District, last spring, all framed as routine compliance questions. All three produced statements that appeared in a subsequent government filing.
The instinct to cooperate when a federal agent telephones is strong. No statute requires a company to answer questions posed over the telephone, and a request for time to consult with counsel is not an admission of anything.
The Shape of the Decision
Whether to cooperate is not a legal question at its foundation. It is a question about what the company knows, what the company can afford to spend establishing what it knows, and what the company is prepared to reveal once the picture is complete. The CEP offers a framework for valuing cooperation after the fact. It does not resolve the uncertainty that exists at the moment the decision must be made.
A company considering self-disclosure would do well to examine the question from the end rather than the beginning. If the internal investigation, once complete, reveals conduct that constitutes a violation, and the company can identify the individuals involved and produce the relevant documents, and no aggravating circumstances exist, the policy offers a declination. That is a meaningful benefit. If any of those conditions is uncertain, the benefit is correspondingly less certain, and the costs of cooperation may exceed what a company can absorb without altering the course of its operations.
A first conversation with counsel costs nothing and assumes nothing. It is the point at which the question stops being a policy abstraction and begins to acquire the contours of a company’s particular exposure, with its particular facts and whatever information is presently available.