The Commodity Futures Trading Commission’s Division of Enforcement updated a 2007 advisory (click here to access) to clarify the type of cooperation it would consider to warrant a recommendation of reduced charges or sanctions against a company or an individual in connection with an enforcement investigation or action. It did this in separate advisories for companies and individuals. In general, the Division said it looks “for more than ordinary cooperation or mere compliance with the requirements of law.” In evaluating this, the Division noted three factors it will consider: (1) whether the cooperation resulted in “material assistance” to the Commission’s investigation and enforcement action, including its success, considering the timeliness, nature and quality of the cooperation; (2) whether the cooperation encouraged “high quality” assistance from other persons considering the significance and harm of the relevant type of misconduct and CFTC resources conserved as a result of the help; and (3) the subject’s culpability, and in the case of a company, its culture and other relevant factors. Uncooperative conduct could limit the credit a subject might otherwise receive, said the Division. Uncooperative conduct would include failing to respond timely and completely to requests for documents and testimony and misrepresentations, among other conduct. Although the Division expressly stated in its advisory for companies that its advice on cooperation was not intended to erode the attorney-client privilege or work product protections, it did not articulate a similar statement in its advisory for individuals. However in its advisory for companies, the Division noted that “[t]hese rights are no less important for an organizational entity than for an individual.”