For those facing a potential enforcement recommendation at the close of a white collar investigation, choosing whether to litigate against or settle with the government agency is a critical strategic crossroads. Recent statements by officials from both the DOJ and SEC have provided clarification on what factors to consider when making that decision. Specifically, these statements have indicated an increased threshold to receive cooperation credit, stricter compliance and monitorship requirements, and a potential easing of the former administration’s “anti-piling on” policy. Broadly, these statements evince a government enforcement regime that both increases the risk of litigation but also expands the cost of settlement. Accordingly, it is more important than ever for those facing an enforcement action to seek advice on what to do when the government comes calling.
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