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New DOJ False Claims Act Guidelines: Credit for Disclosure, Cooperation and Remediation

In May, the US Department of Justice (DOJ) issued revised guidelines regarding “taking disclosure, cooperation and remediation into account in False Claims Act (FCA) matters.” These guidelines highlight the federal government’s interest in the voluntary disclosure of FCA violations by entities and individuals. The DOJ notes that “entities and individuals that make proactive, timely, and voluntary self-disclosure” to the government may be eligible to receive credit during the resolution of a FCA matter. Of course, the quality of cooperation is measured using discretionary criteria, and the ultimate decision to resolve an FCA matter rests solely with the DOJ. However, the DOJ notes certain forms of cooperation that will be considered when assessing the value of an entity’s or individual’s cooperation, including:  

  1. Identifying individuals involved in misconduct
  2. Disclosing facts to assist the government in obtaining evidence
  3. Identifying individuals who are aware of relevant information
  4. Providing facts relevant to potential third-party misconduct

The DOJ also states that, in considering the value of a disclosure, the government will look to: 1) the timeliness and voluntariness of the disclosure; 2) the truthfulness and reliability of the disclosure; 3) the nature of the assistance; and, 4) the significance of the cooperation. 

If the DOJ awards credit for disclosure, cooperation and remediation, that credit will normally take the form of a reduction in penalties or damages. Interestingly, this credit “may not exceed an amount that would result in the government receiving less than full compensation for the losses caused by the defendant’s misconduct.” The DOJ also points out that cooperation does not include responding to subpoenas or disclosing information required by law.

In 2018, the DOJ recovered over $2.8 billion worth of FCA penalties and damages. Navigating disclosures and other FCA related issues can be a difficult and daunting task. Frier Levitt assists entities and individuals in developing sound legal strategies for these types of issues. Contact Frier Levitt today to speak to an attorney.