It is always good to go back and review the guidance from regulatory agencies every now and then. The CFTC issued guidance for how it would consider cooperation from companies who have been or may be charged with a violation (here is the guidance). It starts out by setting the expectation that "what a company voluntarily does, beyond what it is required to do" is important.
It sets forth three broad areas of focus:
1. The value of the company's cooperation to an investigation of enforcement action;
2. The value of the company's action to the overall CFTC enforcement interests; and
3. The level of culpability and prior misconduct balanced against acceptance of responsibility, mitigation, and remediation.
It also adds a negative factor - "Uncooperative Conduct" - at the end.
Note that the first two items are not how much you cooperated by whether the cooperation actually had any value. Voluntarily presenting reams of useless information is not going to be of value. Specific, targeted information that either furthers the investigation of makes resolution of the investigation - and DCM believes the qualifier here would be that in formation helps the resolution in the manner the CFTC staff feels is warranted - easier is the concept of "value" being indicated here.
The guidance goes on to further examine the three broad points with a listing of additional factors for each of the areas.
For value in an enforcement action, the factors are:
All of these things have in common the impact of increasing the costs and effort of the CFTC action as well as reducing the success of the CFTC investigation in getting an accurate picture of the behavior - as inverse impacts of the cooperation points listed before.
The guidance closes with two additional areas - an acknowledgement of attorney-client privilege and a caveat that all this guidance is advisory and its application is at the complete discretion of CFTC staff to apply in a manner they see fit in their discretion.