The Department of Justice launched a pilot program in March to offer cooperation incentives and credits to companies facing criminal misconduct from alleged employee malfeasance by clawing back compensation from those responsible.

An article published by Legal Dive notes that the DOJ’s program recognizes that despite shareholders’ lack of involvement in misconduct, shareholders have endured the burden of corporate financial penalties. As such, the DOJ hopes to shift the burden to those more directly responsible.

Even if the clawbacks are unsuccessful, those companies attempting them in good faith are still eligible to receive a reduction in fines under the pilot program. But what does good faith look like? Pillsbury Corporate Investigations & White Collar Defense partner and former federal prosecutor Patrick Hovakimian said, “When you see it, you know.”

“If you look at the actual policy of the pilot program, when they bring up good faith, they kind of drop a footnote saying that the criminal division shall determine in its sole discretion the presence or absence of a company’s good faith,” he said.

Because the DOJ will follow its customary resolution process, Hovakimian says, “There can be any number of back and forth. There will be phone calls. There will be meetings. There will be presentations. Once it becomes clear that the DOJ isn’t going to walk away, there will be settlement talks and determining good faith will be part of that course of dealing.”

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