Last week the UK Serious Fraud Office (“SFO”) published its long-anticipated guidance on the steps companies should take when choosing to cooperate with the agency’s investigations. A mere five pages long, the SFO’s Corporate Co-operation Guidance (the “Guidance”) nevertheless provides welcome insight on what the SFO takes cooperation to mean, and what actions will be perceived as inconsistent with cooperation. The Guidance is focused on two areas: (1) preserving and providing material (e.g., electronic communications, financial records, etc.) to the SFO; and (2) providing the SFO with witness accounts (i.e., interview memoranda or notes) and navigating attendant privilege issues. The latter section of the Guidance is notably double-edged, offering clarity with a cost by imposing an additional burden when asserting claims of privilege over witness accounts. While a step in the direction of clarity, the Guidance leaves certain key questions unanswered and indicates potential points of tension with equivalent guidance provided by the U.S. Department of Justice (“DOJ”).
I. Overview -
Much of the Guidance simply restates good investigative procedure and will look familiar to white collar and financial crime practitioners in the U.S. and UK. Despite the Guidance’s disclaimer that “cooperation means that no checklist exists that can cover every case,” the document looks and feels like a checklist, especially across its middle three pages, where it ticks off bulleted steps that the SFO views as consistent with cooperation. Rather than a deficiency, the checklist approach is refreshingly simple, direct, and clear, and seems more likely to produce concrete results than the use of amorphous standards. For companies considering cooperation, the SFO’s stringent expectations and the consequent burden on the company, in terms of time, resources, and transparency, are now clearer than they have ever been.
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