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What does cooperation look like?

Written by Robert Barrington on Friday, 23 January 2015

A long-running call from prosecutors of corporate corruption has been that companies should cooperate in the investigation.  They typically state that companies will be better off if they cooperate, and at times this has led to lesser sentences or lower settlements.  What kind of cooperation do they really expect – and how often does it happen in practice?


Last night, there was a fascinating Q&A session with the Serious Fraud Office at Norton Rose Fulbright.  Among the subjects debated was what level of cooperation companies should be expected to give, what this looks like in practice and, critically, the role that their legal representatives play.   There is clearly a sense of frustration that some companies are not cooperating, and prosecutors believe that their legal representatives are partly responsible.  Of course, this brings us into the territory of attorney-client privilege, and indeed what type of cooperation satisfies the prosecutors.

It struck a chord because at TI our standard line has been that when a company finds itself under investigation, it is best practice to cooperate, and we would hope to see a model response from a best practice company.  In recent years, it has been increasingly common for companies to approach us informally and ask ‘what does a model response look like?’.  I won’t attempt to answer that here – an  effort can be found in a blog on GSK in China from a few months ago but in fact my key takeaway from the evening was one of style and not substance.

I’ve seen the SFO speak at many events over the past decade, and at times it has looked like an organisation under pressure and uncertain of its direction.  This was a new SFO on show, and two things stood out:

1.  Clarity.  The messaging on key issues was much clearer.  This shows the benefits that an active caseload and success in the courts can have in defining the position on key issues.  The messages will not have been popular with everyone in the audience.  But the SFO is clear what it thinks, and for any company or professional adviser, it’s important to know that.

2.  Confidence.   This is an organisation that has a new-found self-confidence.  It has suffered some well-publicised setbacks over the past decade and had every reason to doubt itself.  Now it is building a track record of successful prosecutions, has found support from almost everywhere after the ill-judged political manoeuvrings to abolish it, and has secured new funding.  It is not intending to be cowed into submission by aggressive defendants.   It feels a bit more like the DoJ in its heyday.

My message to companies would be: find out what cooperation looks like to the SFO – and then do it.

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Read 30 times Last modified on Wednesday, 11 November 2015 14:21
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Robert Barrington

Robert is TI-UK's Executive Director. You can view his full bio here, and tweet him @TIukED.

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