Every in-house counsel with responsibility for government investigations and enforcement matters knows that an indictment is a company's worst outcome — and nightmare. Yes, there may be an occasional case when the only way to properly defend a company's institutional interests is to risk indictment and fight to the death at trial. But those instances are, in reality, extremely rare, even though as advocates we may wish for the opportunity to challenge the government's evidence and rebut allegations in an adversarial court proceeding.
More often than not — and by strong measure — a company is best served by seeking a resolution in an enforcement case that avoids all the adverse consequences that an indictment brings, not the least of which is the risk of conviction. Often, one way to pursue the best possible resolution is to cooperate with a government investigation. But what does cooperation actually entail and does it mean capitulating to the government's allegations or suspicions?
