The June 22 announcement of federal charges against 301 medical professionals accused of more than $900 million in fraudulent billing is a significant indication that the government is serious about increasing its pursuit of health care fraud indictments.
More Troops, Big Data and Watch Out, Corporations!
To be forewarned is to be forearmed. That ancient observation is especially true for those attorneys and health care providers who must deal with the massive power and breadth of the law enforcement arm of the United States government, the Department of Justice.
DOJ “Yates Memo” and release of 20-year study of white collar prosecutions suggest major changes in the way white collar crime is prosecuted and defended.
Two separate news items, each released on Sept. 10, 2015, are well worth noting by all practitioners of white collar criminal defense, general counsel for corporations, business executives and employees and, indeed, the general public.
The first news item, which has received the most media attention, is the new Department of Justice memo titled, “Individual Accountability for Corporate Wrongdoing.” The memo, authored by Deputy Attorney General Sally Quillian Yates and addressed to all of the divisions of the U.S. Department of Justice as well as every U.S. Attorney in the nation, has received a great deal of media coverage (e.g., a front page article in the New York Times). The Yates Memo, as it will no doubt be known, seeks to do nothing less than redirect all federal prosecutors, civil and criminal, to focus their efforts to an unprecedented degree on individual corporate executives and employees.
Otherwise, a ruling on the field may be overturned
The “play” has become as familiar as a forward pass. If not careful, however, your play may draw a flag and penalty.
When faced with a scandal, public companies, colleges or universities, and even the NFL, all seem to execute the same play: They rush to solemnly assure the public of their determination to get to the bottom of the issue and uncover any and all wrongdoing. In the same vein, the entity usually further proclaims that it has retained outside counsel to promptly, thoroughly and independently investigate the matter.
Nearly every day in nearly every city in the United States, businesses and individual citizens are unexpectedly visited by some government agent, and we don’t mean mail carriers. These are local, state or federal agents, inspectors or investigators. They may be special agents for state and federal agencies such as Departments of Revenue, Environmental Protection Agencies or even law enforcement, like the FBI. They may be from agencies like OSHA, the SEC, or the Department of Labor. They may even be from one of the multitude of local, state or federal inspectors general offices, many of which have broad investigatory authority. Whatever their particular title or agency, they are all government agents, and most, if not all, have agreements, formal and informal, to share information and cooperate with each other’s investigations. So what you might say to one agency may as well be said to all of them.
The crucial question is: What do you or your employees do when these government agents appear? How you respond to the visit may have profound consequences, good or bad, for you or your business.
The situation where a corporate employee is being interviewed by the attorney representing the corporation raises special attorney-client issues. Such interviews are common place in most internal investigations carried out for the purpose of providing legal advice to a corporation. In Upjohn v. United States, the Supreme Court provided important guidance to all attorneys who find themselves interviewing corporate employees. The purpose of the “Upjohn Warnings”, as they have come to be known, is to make sure that the individual employee being interviewed understands that the attorney-client privilege, as commonly understood, does not apply to their interview with an attorney representing the corporation. Making sure that the employee being interviewed is aware of this fact is a necessity that establishes the ethical character of the attorney’s actions while also preserving the corporation’s legal ability to control and use the statements by the employee in the manner best suited to its legitimate interests.
In a surprise move, on Oct. 6, the U.S. Supreme Court decided to not decide one of the most anticipated cases of the year. No, not the much ballyhooed same sex marriage cases the Supreme Court declined to decide.
The other surprise move by the Supreme Court that same day; little noted by the media; is that the Supreme Court also passed up a chance to rule in what is probably the most important Foreign Corrupt Practices Act (“FCPA”) case of the last 10 years. Esquenazi, et al. v. USA, Case No. 14-189.