On May 6, 2019, the Justice Department announced new guidelines regarding the manner in which the government will credit a defendant who cooperates in a False Claims Act (FCA) investigation.

A defendant charged with defrauding the federal government and violating the FCA, can now earn credit by cooperating with the government’s investigation by engaging in voluntary self-disclosure, cooperation, and remediation.

The guidance includes several factors to be considered in assessing the value of the cooperation, including: whether the assistance is timely and voluntary; whether the testimony is truthful and complete; the extent of any assistance; and, whether cooperation is actually useful.  The guidance also stressed the importance of remedial measures, and analyzing why the misconduct happened, implementing compliance measures, disciplining responsible individuals and taking “any additional steps” that demonstrate accountability and acceptance of responsibility.

While it’s still early too early to tell, the thrust of the guidelines appear to be aimed at reducing the total amount of damages wrongdoers may have to pay for defrauding the government:  “Most frequently, cooperation credit will take the form of a reduction in the damages multiplier and civil penalties.”

A copy of the press release announcing the guidelines can be viewed here.

The new guidelines were added as section 4-4.112 of the Justice Manual and can be viewed here.