Karen Woody Publishes “Corporate Crime and Cooperation” in The Business Lawyer The article outlines the historical underpinnings of corporate cooperation, and expands upon the literature considering the structural, constitutional, and normative issues with corporate cooperation.

By Law Communications
March 11, 2024

Washington and Lee law professor Karen Woody has published an article in The Business Lawyer. The article, “Corporate Crime and Cooperation,” outlines the historical underpinnings of corporate cooperation, and expands upon the literature considering the structural, constitutional, and normative issues with corporate cooperation.

Over the past few decades, the Department of Justice (DOJ) has regularly issued guidance about how companies could or should assist the government in reaching a resolution to a corporate criminal investigation. Among the white collar bar, it is a given that a company will cooperate with the DOJ in order to receive the best outcome and settlement. What “cooperation” entails, however, has differed over the past few decades. The reason companies cooperate is to be afforded the “carrot” of cooperation credit, rather than face the the “stick” of increased fines and punishment. Cooperation credit is a major factor in corporations’ decisions regarding all aspects of their own internal investigations, including whether or not to voluntary disclose potential violations of the FCPA or other criminal conduct, what documents to produce to the government and when, and whether to allow the government to interview (and potentially indict) executives.

The recent DOJ Memorandum issued by Deputy Attorney General Lisa Monaco doubles down on the notion that companies must be swift in voluntarily disclosing violations, quick to point fingers at executives involved, and must produce to the government potentially damning documents immediately upon discovery. The Monaco Memo seemingly moves the needle further in favor of the government; meaning, a company must do more to meet the standard of “cooperation” in order to be eligible for cooperation credit. As the standard for cooperation becomes harder to attain, more corporations may push back. The risk to the DOJ of making cooperation credit too elusive is that the DOJ likely does not have the resources to engage in full-scale investigations of companies. Rather, the government relies upon companies to voluntarily disclose violations and to perform internal investigations at their own expense. What then happens when companies refuse to cooperate? When the carrot becomes too elusive, will companies begin taking their odds with the stick?

The article is available online, with a subscription, at the website of the American Bar Association.

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