Guidance sets out the SFO’s expectations for investigations but leaves open questions, particularly for cross-border investigations.
On 6 August 2019, the UK Serious Fraud Office (SFO) issued its much-anticipated Corporate Cooperation Guidance (the Guidance) outlining, in substantial detail, the steps that the SFO expects corporations to undertake in order to be eligible for cooperation credit. In many respects, the Guidance is unsurprising and provides the types of best investigative practices that sophisticated companies and their advisers are already familiar with. However, the Guidance also leaves open some questions for companies navigating cross-border investigations. In particular, companies will still need to assess (i) the extent to which they should conduct an investigation before making the complex decision to self-report a potential issue; and (ii) whether to waive privilege to obtain cooperation credit while risking broader disclosure, particularly in cross-border investigations. Companies will need to undertake these assessments, absent a clear indication of the precise benefits of cooperating with the SFO in resolving a case.
SFO’s Views on Cooperation
The Guidance explains that the SFO will consider the extent of cooperation when making charging decisions, but that cooperation does not guarantee any specific outcome. To be regarded a cooperator, a company must go beyond what is required by law; compliance with compulsory process is not enough. To that end, the Guidance sets out a detailed list of actions that the SFO will consider cooperative, including:
- Reporting misconduct within a reasonable time of the suspicions coming to light
- Identifying responsible employees regardless of seniority or position in an organisation
- Following general investigatory best practices, including proper data preservation, providing material promptly and meeting agreed deadlines; providing material in an organised, useful, and structured way (g., compilations of key documents categorised by individual or issue); providing relevant material that is held abroad, in the possession or under control of an organisation
- Making accountants or other personnel are available to speak about financial records and money flow, if appropriate
- Providing notes (and or recordings/transcripts) of any witness interviews and providing a witness to speak to the content of those interviews
- Consulting with the SFO before interviewing witnesses or taking any disciplinary action, and refraining from showing a witness any document that he or she may not have already seen
One potentially “new” feature of the Guidance is that the SFO appears to be accepting a greater level of internal investigation by companies, prior to self-reporting. Under the SFO’s previous director, there had been a number of well-publicised speeches by senior staff counselling companies against investigations that “trampled the crime scene”; preferring to leave fact-finding tasks to SFO investigators.
Comparison to US Approach
Much of the Guidance is common-sense investigative practice. However, certain aspects of the Guidance could raise practical issues for companies conducting complex investigations, particularly those involving the US authorities.
The Guidance expressly instructs companies to consult with the SFO “before interviewing potential witnesses, or suspects, taking personnel/HR actions or taking other overt steps”. (emphasis added). In general, the US authorities do not require such pre-approval (though consultation at times may be appropriate) and, in practice, often appreciate factual briefings that contain information derived from this type of witness interview. The Guidance is also proscriptive in how the SFO expects the company to conduct its own investigation. For example, the Guidance instructs parties to “refrain from tainting a potential witness’s recollection, for example, by hearing or inviting comment on another person’s account or showing the witness documents that they have not previously seen”. The Guidance is somewhat unusual in directing tactical decisions usually left to the company and its counsel, depending on the particulars of the case. A US court also recently raised concerns about governmental involvement and/or directives in a nominally internal investigation, which could raises the risk that the company’s investigative activities could be imputed to the government, thereby implicating the protections afforded by the US Constitution (i.e., against self-incrimination, compelled testimony, etc.).
Regarding the much-discussed topic of interview memos, the Guidance states that “[o]rganisations seeking credit for co-operation by providing witness accounts should additionally provide any recording, notes and/or transcripts of the interview and identify a witness competent to speak to the contents of each interview”. Given that, in the US at least, this type of material likely will attract privilege, the Guidance creates an expectation that a company will waive that privilege in order to obtain cooperation credit. Here, the UK approach contrasts sharply with the US approach, which prohibits federal prosecutors from conditioning cooperation credit on a waiver of any applicable privilege and, indeed, provides for the possibility of full cooperation credit for a company that exercises its right to withhold privileged materials.[i]
Key Considerations for Companies
Although the Guidance provides welcome direction to companies facing an SFO investigation, it leaves open several questions:
- Consider Timing of a Self-Report
The Guidance requires early self-reporting, while also instructing companies to consult with the SFO before interviewing key witnesses. Companies will need to balance the risk of the SFO considering an investigation to be tainted (due to the extent of internal investigation), with the need to ensure that the preliminary facts justify self-reporting (thereby ceding control of the investigation to the SFO and inviting the possibility of an enforcement proceeding).
Companies must carefully consider how to plan the preliminary stages of an investigation. On the one hand, they will need to take sufficient precatory steps to enable an informed decision on self-reporting; on the other hand, the SFO remains wary of a company taking steps that could taint the SFO’s own investigation.
Striking this balance raises two practical concerns. First, whether and under what circumstances a company’s preliminary investigation can include witness or suspect interviews. Second, to what extent a company is willing to cede control of its own investigative activities (and the consequent impact of any HR or ancillary civil actions), in order to facilitate a self-report to the SFO.
- Consider Privilege Implications From Cooperation
Companies should closely consider the privilege ramifications of any disclosure of material to the SFO (or any other third party), including interview notes or summaries. Under US law, a waiver for one purpose is generally a waiver for all purposes. Accordingly, any such voluntary disclosure of privileged materials to the SFO could effectuate a broad waiver of the privilege in respect of any documents pertaining to the same subject matter in any ongoing or subsequent US proceeding (whether criminal, administrative, or civil). In other words, witness summaries produced to the SFO would also likely need to be produced in a civil securities or other plaintiffs case in the US. Companies should, in consultation with counsel, carefully consider cross-border exposure before deciding to waive privilege in the context of SFO investigations.
- Consider Benefits of Cooperation
Although the Guidance states that cooperation is a factor in charging decisions (including in respect of whether a company is eligible for a deferred prosecution agreement), it does not set forth with any particularity the benefits a company can expect to obtain by cooperating. In contrast, the US DOJ FCPA Corporate Enforcement Policy expressly provides a presumption in favour of a declination where there has been: (i) a voluntary self-disclosure; (ii) full cooperation and; (iii) timely and appropriate remediation.[ii] In addition, the DOJ Policy provides for specific reductions in fines (up to 25%) if there has been cooperation and remediation but no self-disclosure. While the Guidance does helpfully provide companies with the SFO’s view on cooperation, it leaves companies with potentially difficult decisions in the face of uncertain benefits.
The Guidance is a welcome and insightful look at how the SFO evaluates companies’ cooperation. However, companies will need to continue to wrestle with difficult questions for how best to respond to an SFO investigation, particularly in an increasingly cross-border environment where multiple investigative bodies may be involved.