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The Barko v. KBR Privilege Battle Continues

A high-profile qui tam suit against Kellogg, Brown & Root and Halliburton continues to generate important case law relating to the scope of attorney-client privilege and work product protection given to internal...more

12/18/2014 - Attorney-Client Privilege Barko v Halliburton Compliance False Claims Act Halliburton Internal Investigations Kellogg Brown & Root Qui Tam Work Product Privilege

Prosecuting Individuals for Financial Crimes - Some Questionable Recent Ideas

The government must be very sensitive about all the criticism it has been getting, from Congress, some judges and others, for not prosecuting more individuals for financial crimes. Perhaps in response, senior government...more

11/26/2014 - Compliance Criminal Prosecution Eric Holder FCPA Responsible Corporate Officer Doctrine Self-Reporting White Collar Crimes

D.C. Circuit Upholds Claim Of Corporate Attorney-Client Privilege

A recent blog post addressed a noteworthy decision in United States ex rel. Barko v. Halliburton Co., No. 1:05-CV-1276, 2014 WL 1016784 (D.D.C. Mar. 6, 2014), which held that materials relating to an internal investigation...more

8/5/2014 - Attorney-Client Privilege Barko v Halliburton Corporate Counsel Defense Contracts DOD Federal Contractors Halliburton Internal Investigations Kellogg Brown & Root Upjohn Warnings Willful Misconduct

The Second Circuit And The Separation Of Powers: Limiting Judicial Scrutiny Of SEC Settlements

On June 4, 2014, a three-judge panel of the Second Circuit Court of Appeals vacated a widely publicized 2011 decision by U.S. District Judge Jed Rakoff, which rejected a settlement between the U.S. Securities and Exchange...more

7/3/2014 - Citigroup Consent Decrees Judge Rakoff Judicial Review SAC Capital SEC SEC v Citigroup Separation of Powers Settlement

When Is An Internal Investigation Not Privileged?

Compliance programs have grown in importance along with the demands of new laws and regulations. These programs are increasingly seen as vital to preventing corporate misconduct or, at least, mitigating sanctions if...more

4/17/2014 - Attorney-Client Privilege Compliance Internal Investigations Investigations Work Product Privilege

Health Care Self-Disclosure Protocols – Is It Worth It To Self-Report?

In recent years the federal government has aggressively investigated and prosecuted pharmaceutical companies and health care providers for possible violations of anti-fraud, anti-kickback and other laws. These efforts have...more

2/12/2014 - Anti-Kickback Statute CMS Compliance FCPA Healthcare Healthcare Fraud HHS OIG Self-Disclosure Requirements

Selective Waiver in the Second Circuit -- Is it Dead, or Just Dying?

When the government launches an investigation of a company, senior management typically calls for an internal investigation of the facts and tries to cooperate by sharing with the government the information that is gathered....more

12/11/2013 - Attorney-Client Privilege Selective Waivers Waivers

More Incentives For Whistleblowers: New York Considers A New Law To Reward And Protect Whistleblowers

In recent years we have seen two trends of great importance to the conduct and defense of government investigations – one, the growth of state agency investigations of matters previously handled on the federal level, and two,...more

10/9/2013 - Financial Services Authority Whistleblower Protection Policies Whistleblowers

A Plant Grows In Brooklyn: EDNY Judge Scrutinizes Deferred Prosecution Deal

A deferred prosecution agreement (“DPA”) has become a common means of resolving a federal criminal investigation of a company. Under a DPA, criminal charges against the company are filed in court, but prosecution of the case...more

7/31/2013 - Criminal Prosecution Deferred Prosecution Agreements HSBC Investigations

Litigation: The expanded role of courts in settling government investigations - A growing number of federal judges are closely...

Government investigations of companies typically end in settlements. These may be civil in nature, in which companies commonly agree to pay money and take remedial measures to deter and prevent the misconduct that the...more

7/2/2013 - Bank of America Citigroup Deferred Prosecution Agreements Enforcement Actions Judges Neither Admit Nor Deny Settlements Non-Prosecution Agreements SEC Settlement

Litigation: Whistleblower retaliation claims: Two trends in whistleblower activity have created new hazards for companies

The laws protecting and rewarding corporate whistleblowers have increased in scope and number in recent years, as we described in our most recent article. Even more dramatically, courts and lawmakers have broadened the...more

6/27/2013 - Dodd-Frank False Claims Act OSHA Protected Activity Retaliation Sarbanes-Oxley Whistleblowers

Litigation: To the tune of $3 billion, whistleblower claims are on the rise - The 2010 Dodd-Frank Act is the likely impetus for...

At one time whistleblowers were relatively rare and isolated, and the law did not grant them much protection. But that’s not the case anymore. Fulbright & Jaworski's recent litigation trends survey of in-house counsel found...more

6/26/2013 - Contractors Dodd-Frank False Claims Act Fines Penalties Risk Management Whistleblowers

Litigation: Investigating whistleblower complaints: When whistleblowers raise issues, proceed with caution

Companies launch internal investigations based on information that comes from a variety of sources, including newspaper articles, government requests for information and information bubbling up from within the organization...more

6/25/2013 - FCPA FDA Internal Investigations Sarbanes-Oxley Whistleblowers

Law Enforcement In The Health Care Industry: What Do New Cases Against Novartis Tell Us?

In recent years, pharmaceutical companies have faced criminal investigations and charges in regard to alleged off-label marketing of prescription drugs and kickbacks to doctors. For this reason, the filing last month of two...more

5/9/2013 - Anti-Kickback Statute DOJ False Claims Act Healthcare Kickbacks Novartis Pharmaceutical

The Cahill Prosecution In Massachusetts: Vagueness Is Still A Problem After Skilling

Vagueness is a common problem in white-collar criminal cases. In many instances the line between legal and illegal conduct is blurry at best. This means that someone could face prosecution, a damaged reputation, loss of...more

4/4/2013 - Definiteness Due Process Fair Notice Fiduciary Duty Honest Services Fraud Self-Dealing Vagueness White Collar Crimes

The Nomination Of Mary Jo White: More Than Just Politics

The President's nomination of Mary Jo White to become Chairman of the SEC has generated reservations as well as praise. Naysayers wonder whether her years in private practice representing banks and bankers, including J.P....more

2/20/2013 - Mary Jo White Nominations Political Appointments SEC

Does Misdemeanor Misbranding Survive Caronia?

The Court of Appeals for the Second Circuit sent shockwaves through the pharmaceutical industry with its decision in United States v. Caronia. Alfred Caronia was a pharmaceutical sales representative convicted of a...more

12/11/2012 - Commercial Speech FDA FDCA Free Speech Marketing Off-Label Promotion Off-Label Use Pharmaceutical

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