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"Cooperation in False Claims Act investigations: The benefits of conducting a proactive internal investigation" by Andrew W. Schilling (Bloomberg Law)

Bloomberg Law

Andrew W. Schilling

Most companies that receive a civil investigative demand (CID) in a False Claims Act (FCA) investigation decide early that they will ‘‘fully cooperate’’ with the government’s investigation. That’s an easy decision because there really is no alternative: Failure to cooperate with the Justice Department undoubtedly will make a bad situation worse, as the government will get what it wants the easy way or the hard way, as they say. In this context, the hard way means that the government will simply file a proceeding in federal court to enforce the CID. Such a proceeding will make public an otherwise confidential investigation, causing reputational harm; probably end in the government’s favor, given the high legal bar for challenging an administrative subpoena; and guarantee an adversarial relationship with the powerful U.S. government.

The real question, therefore, is not whether to cooperate, but how. And that question, unfortunately, often does not get the thoughtful attention it truly deserves.

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Originally published in the Bloomberg Law; reprinted with permission.

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