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Here are some useful tips on avoiding indictment from Department of Justice Deputy Assistant Attorney General Alice Fisher and other panelists at the American Bar Association’s August convention. DO’S • Explain how the facts don’t add up to an indictment, citing precedents to back up your claim. Also argue why an indictment would set a bad precedent for the government. • Argue that the conduct, though wrong, was isolated and not indicative of the culture at your company. But be accurate. “You may not know what’s being said to a grand jury,” notes Fisher. • Admit past problems, but explain how they aren’t relevant to the current case and aren’t part of a pattern of misconduct. Cite improved controls or new management. • Get bad news out quickly. Prompt disclosure is a strong indicator to the government of your good faith. “It’s best to get it on the table,” says Fisher. • Demonstrate that compliance is part of your corporate culture. Cite time spent in developing a program, how employees were trained in it, and how it prevented past wrongdoing. • Take swift action to punish wrongdoers, close compliance loopholes, and put new controls in place. Dealing firmly with rogue elements in the company will impress prosecutors. • Argue that an indictment will put you out of business, costing your community valuable jobs and hurting employees’ families. “We look hard at this,” says Fisher. • State that you are prepared to accept civil penalties, and argue why this is the better course of action for the government than criminal indictment. DON’TS • Complain that the U.S. Attorney investigating you is “out of control,” or has a personal vendetta against your company. It’s an argument that almost never works. • Try to minimize the seriousness of what happened. Candor will earn you points with prosecutors, while extreme posturing will lose them. • Assume that prosecutors are ignorant of past problems. “Covering up hurts your credibility with prosecutors,” says Fisher. “Once that’s lost, it’s hard to get back.” • Try to slip damaging information past prosecutors by burying it in other disclosures. Get too cute and you may wind up before the grand jury. • Say that your program “speaks for itself.” Fisher says prosecutors are looking for compliance programs with real teeth, not simply a document that states, “Don’t commit fraud.” • Make merely cosmetic changes. If you pretend to “clean house” but just shuffle executives to subsidiaries, you’re asking for trouble. “We see this all the time,” says Fisher. • Make this argument if you can’t back it up. Be prepared to offer specific proof (for instance, that your company depends on state government contracts which you’ll lose if indicted). • Act like a civil remedy is a foregone conclusion. Again, assemble ample precedents of other cases with similar facts where prosecutors have agreed to accept civil settlements.

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