Oe than indictment, including non-prosecution and deferred corporation or its employee asserts an advice-of-counsel prosecution agreements, may be appropriate in certain cir- defense and when the attorney-client communications were cumstances. Nine factors are considered in conducting an in furtherance of a crime or fraud. Otherwise, an organi- investigation, determining whether to charge a corporation, zation’s cooperation may only be assessed on the basis of and negotiating plea or other agreements: whether it disclosed the relevant facts underlying an inves- e the nature and seriousness of the offense, including tigation—and not on the basis of whether it has waived its the risk of harm to the public; attorney-client privilege or work product protection.”! e the pervasiveness of wrongdoing within the corpo- ration, including the complicity in, or the condon- What Does SEC Consider When ing of, the wrongdoing by corporate management; Deciding Whether to Open an e the corporation’s history of similar misconduct, Investigatio n or Brin g Cha rg es? including prior criminal, civil, and regulatory SEC’s Enforcement Manual, published by SEC’s enforcement actions against it; Enforcement Division and available on SEC’s website,?”” e the corporation’s timely and voluntary disclosure of sets forth information about how SEC conducts inves- wrongdoing and its willingness to cooperate in the tigations, as well as the guiding principles that SEC staff investigation of its agents; considers when determining whether to open or close an e the existence and effectiveness of the corporation’s investigation and whether civil charges are merited. There pre-existing compliance program; are various ways that potential FCPA violations come to e the corporation’s remedial actions, including any the attention of SEC staff, including: tips from informants efforts to implement an effective corporate compli- or whistleblowers; information developed in other inves- ance program or improve an