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LTexas_Flag_3ast week, the Texas Supreme Court joined the majority of jurisdictions in holding that a company enjoys an absolute privilege when providing the Department of Justice (DOJ) with an internal investigation report containing statements later alleged by an employee to be defamatory. The decision in Shell Oil Co. v. Writt, __S.W.3d__ (Tex. 2015) should provide Texas companies comfort that cooperating with regulatory and law enforcement agencies will not expose them to liability for defamation.

The Writt case arose from an FCPA investigation of Panalpina, a contractor Shell employed to provide freighting and customs-clearing services for a deep-water drilling project off the coast of Nigeria. At DOJ’s request, Shell conducted an internal investigation and provided the DOJ with its confidential findings.

Leslie Caldwell, head of the Justice Department’s Criminal Division, is, in her own words, “pounding the pavement on cooperation and transparency.”  Speaking on Tuesday at the New York City Bar’s fourth annual White Collar Crime Institute in Manhattan, Caldwell took another opportunity to discuss what the government expects of companies that seek to cooperate with criminal investigations.  She emphasized that companies choosing cooperation and expecting to get full credit must act with candor and give the Department all relevant information in a timely fashion. In particular, the Justice Department expects companies to learn and disclose all knowable, relevant facts and to share them, whether they be good or bad and no matter how high the rank of the individuals responsible for the misconduct.