Tag Archives: Government Investigations

The U.S. Has a New MOU with Securities Regulators in China: Real Change or Just Déjà vu?

The Securities and Exchange Commission’s (“SEC”) power to obtain documents from U.S. companies and their auditors is a key component of its mandate to protect the marketplace from fraud. But what happens when the exercise of that power conflicts with the civil and criminal laws of another country? In the case of the SEC seeking … Continue Reading

A Brave New World? The “French Sunshine Act” imposes online disclosure of contracts with HCPs, as well as of payments of “advantages” to HCPs, dating back to 01 January 2012

In probably one the longest-awaited decrees in recent French regulation, the French Ministry of Health published on 22 May 2013, the application decree to the French Sunshine Act (dated 29 December 2011) implementing the specific ways and means that health care companies must disclose agreements with health care practitioners (“HCPs”), a term that includes medical … Continue Reading

Whether to Proffer? Important Change to Pittsburgh Proffer Agreement Makes for a Difficult Decision in the Western District of Pennsylvania

This post was also written by Shannon Voll Poliziani. A crucial decision in most federal “white collar” criminal investigations is whether to “proffer” to the government – to engage in an off-the-record, question-and-answer session with the prosecutor and investigating agent in the hopes of getting immunity, a plea deal, or no charge at all. Because … Continue Reading

UK legislation authorising Deferred Prosecution Agreements is approved

Following on from our posts in 2012 (UK Ministry of Justice Launches Consultation on Deferred Prosecution Agreements and UK Government unveils deferred prosecution agreements as a new enforcement tool), we can now report that on 25 April 2013, the Crime and Courts Act 2013 (the “Act”) was passed. The Act introduces deferred prosecution agreements into … Continue Reading

France: Code of Conduct compliance breach is not automatically a sufficient reason for employee termination – Employers should be cautious of a ‘right’ local implementation of compliance guidelines

On 19 December 2012, the French Supreme Court (‘Cour de cassation’) ruled over a case that should remind any international organization that the worldwide adoption of compliance guidelines and of a Code of Conduct is not in itself a sufficient protection against compliance breaches: everything depends on how these tools are implemented locally.   The … Continue Reading

People’s Republic of China (PRC) Implements Significant Penalties for Commercial Bribery in Recently Issued Trial Regulations on Centralized Procurement of Medical Consumables

This post was also written by Christine Liu and Gordon Schatz. China’s Ministry of Health, along with five other government agencies, issued Trial Regulations on Centralized Procurement of High-Value Consumable Medical Supplies on December 17, 2012. These regulations went into effect immediately upon issuance and contain procedures for the centralized purchasing of a wide range … Continue Reading

SEC and DOJ Release Long Awaited FCPA Guidance

This post was also written by Francisca M. Mok. On November 14, the Securities and Exchange Commission and Department of Justice released their long-awaited guidance titled, A Resource Guide to the U.S. Foreign Corrupt Practices Act. According to the government’s press release, the 120-page guide “provides a detailed analysis of the U.S. Foreign Corrupt Practices … Continue Reading

UK Government unveils deferred prosecution agreements as a new enforcement tool

On 23 October 2012, the UK Ministry of Justice published the Government’s response to the consultation on deferred prosecution agreements (“DPAs”). This confirmed that DPAs will be introduced in England and Wales as an alternative to prosecution of companies for fraud, bribery and money laundering offences. The Government intends to amend the Crime and Courts … Continue Reading

Government Sanctioned in False Claims Act Case for Failing to Preserve Documents

This post was written by Andrew Bernasconi and Nathan Fennessy. As we noted previously, there has been increasing attention in False Claims Act (“FCA”) cases to whistleblowers who fail to preserve relevant evidence. Now, in a recent decision in the United States District Court for the District of New Mexico, the government has been sanctioned for its … Continue Reading

Second Circuit Holds that Proper Measure of FCA Damages for Grant Recipient is the Full Amount of the Grant

This post was also written by Andrew C. Bernasconi and Nathan R. Fennessy. In a troubling decision that could have significant implications for grant recipients, the Second Circuit recently held that the proper measure of damages in a False Claims Act (“FCA”) case against a grant recipient is the full amount of the grant, regardless of … Continue Reading

Blunt new statements of policy from the SFO on facilitation payments, gifts and hospitality and self-reporting

Following on from our last blog, the SFO has published revised statements of policy on its website dealing with facilitation payments, business expenditure (i.e. hospitality and gifts) and self-reporting which take immediate effect and revoke previous guidance. The new statements of policy are blunt. Facilitation payments – the SFO has reiterated that these are illegal under … Continue Reading

FCA Qui Tam Relator Sanctioned for Failing to Produce Documents

This post was written by Andrew C. Bernasconi and Nathan Fennessy. Continuing the recent trend of decisions sanctioning whistleblowers for failing to comply with their discovery obligations (see our previous posts “Whistleblower Precluded from Relying Upon Stolen Records for False Claims Act Case” and “FCA Qui Tam Relator Sanctioned for Destroying Evidence on Company-Issued Laptop”), the … Continue Reading

Whistleblower Precluded from Relying Upon Stolen Records for False Claims Act Case

Qui tam relators may have a difficult time in the future when relying upon stolen records or confidential patient information in False Claims Act (“FCA”) whistleblower actions after a recent decent by the United States District Court for the Southern District of Ohio. See Cabotage v. Ohio Hospital for Psychiatry, No. 11-cv-50 (S.D. Ohio July … Continue Reading

Fifth Circuit Upholds Ability of Government Employee Whose Job is to Investigate Fraud to Bring Qui Tam False Claims Actions

This post was written by Scot T. Hasselman, Andrew C. Bernasconi, Nathan Fennessy, and Gunjan Talati. In a case of first impression in the United States Court of Appeals for the Fifth Circuit, the court held in United States ex rel. Little v. Shell Exploration & Production Co., No. 11-20320 (5th Cir. July 31, 2012) … Continue Reading

Supreme Court Rules That Juries – Not Judges – Must Determine Facts Supporting Large Criminal Fines

This post was written by Efrem M. Grail and Kyle R. Bahr. Criminal fines against companies and individuals convicted of white collar, antitrust, environmental, health care, and other offenses can balloon into the millions or hundreds of millions of dollars. In a recent ruling that protects the Sixth Amendment rights of defendants in these high-stakes … Continue Reading

Where Two Bank Employees Steal Proprietary Trading Code, Could One Stay in Jail Merely Because He Printed it out First?

This post was written by Jennifer L. Achilles. This past April, the Second Circuit narrowed federal prosecutors’ ability to charge former employees for stealing proprietary information from their companies. United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012) (overturning Aleynikov’s conviction for violating the National Stolen Property Act and the Economic Espionage Act after … Continue Reading

In Re Grand Jury, No. 12-1697 (3d Cir. May 24, 2012)

This post was also written by Efrem M. Grail, Esq. A recent Third Circuit opinion undercuts the attorney-client privilege, especially in federal grand Jury investigations of companies and individuals. Under the new precedent, there is no way to immediately challenge a court order invading the protections of the attorney-client privilege without first suffering a judicial … Continue Reading
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