DOJ Won’t 'Articulate' What Exactly Constitutes Extraordinary Cooperation, Official Says

DOJ last week offered insight on what may constitute “extraordinary” cooperation under its recently revised corporate enforcement polices, but said it doesn’t plan to issue a more concrete definition. The agency can “never articulate, in advance, what exactly will or will not satisfy these provisions,” Assistant Attorney General Kenneth Polite said, adding that each case is “different, and our prosecutors need flexibility and discretion to apply their judgment in the myriad scenarios that may be presented.”

Lawyers have complained about the agency’s opaque definition of “extraordinary” cooperation (see 2303080063 and 2302060034), a phrase included in its February revised enforcement policies, which outlined new criteria companies must meet to qualify for declinations. The policies allow companies with “aggravating” factors to qualify for a declination if they provide DOJ with “extraordinary” cooperation, and Polite at the time said “we know ‘extraordinary cooperation’ when we see it” (see 2301190031).

“But we understand that companies may wish for more to guide their decision-making now,” Polite said during a compliance conference last week. He pointed to the agency’s December deferred prosecution agreement with ABB (see 2212050021), which showed “extensive efforts to cooperate with our investigation.” He said ABB voluntarily made foreign employees available for interviews in the U.S., produced “relevant documents” located outside the U.S., and helped prosecutors assess “voluminous evidence,” including by translating certain documents.

Polite also said “extraordinary remediation” means “conducting root cause analyses and taking action to prevent the misconduct from occurring, even in the face of substantial cost or pressure from the business.” That can sometimes “require significant structural changes to a company to ensure compliance” and involve holding “wrongdoers accountable.”

He added that the “best way to understand these terms is to see how they are applied in future cases.”