AGG’s Government Investigations Team Insights provides periodic updates covering legal and regulatory topics. Our team, which includes former federal prosecutors, SEC enforcement attorneys, and federal agency attorneys, has successfully represented companies and individuals, including executives of public companies, in numerous civil and criminal investigations, including before the U.S. Department of Justice and U.S. Attorney’s Offices, the SEC, the EPA, the FDA, the FTC, and many other federal and state agencies. We also assist our clients by conducting internal and parallel investigations, and advising them regarding the related issues that often follow government investigations, including civil litigation, media interest, and reputational concerns.
In this edition, we discuss the risks of not invoking your Fifth Amendment rights, the impact of the Department of Justice’s new Corporate Enforcement Policy, and two False Claims Act cases pending before the Supreme Court.
Featured Articles
Invoking the Protection of the Fifth Amendment Is Your Right and It’s the Right Thing to Do
By Aaron M. Danzig
From high school civics classes to television shows and music lyrics, most people are familiar with the phrase, “Taking the Fifth.” There are multiple rights enshrined in the Constitution’s Fifth Amendment, but “Taking the Fifth” refers to the right individuals in the U.S. have against self-incrimination. The pertinent section of the Fifth Amendment states: “No person . . . shall be compelled in any criminal case to be a witness against himself.”
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New DOJ Corporate Enforcement Policy Places Still More Pressure on Companies to Cooperate and Self-Report
By Aaron M. Danzig and Sara M. Lord
Last month in a speech at Georgetown University Law Center, Assistant Attorney General Kenneth A. Polite, Jr., announced revisions to the Department of Justice’s Corporate Enforcement Policy, to apply to all corporate criminal matters. The new policy places greater emphasis — and incentives — on companies to voluntarily self-disclose wrongdoing and cooperate with DOJ investigations. Absent “aggravating circumstances,” the new policy declares that “when a company has voluntarily self-disclosed misconduct, . . . fully cooperated, and timely and appropriately remediated, . . . there will be a presumption that the company will receive a declination” (i.e., the company will not be charged). While the new policy provides strong incentives for companies, it also will require them to make decisions that could have significant, long-term ramifications quickly, and possibly even before they have fully ascertained and assessed the relevant facts and circumstances.
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Does “Objective Reasonableness” Matter? Supreme Court Poised to Address Scienter Standard Under the False Claims Act
By Kara G. Silverman
On January 13, 2023, the Supreme Court of the United States granted a writ of certiorari in two cases, United States ex rel. Schutte v. SuperValu Inc., 9 F.4th 455 (7th Cir. 2021) and United States ex rel. Proctor v. Safeway, Inc., 70 F.4th 649 (7th Cir. 2022), weighing the issue of whether a defendant acts “knowingly” in violation of the False Claims Act (“FCA”) if he relied on an objectively reasonable interpretation of an ambiguous law. This issue goes to the heart of FCA liability in cases involving “legal falsity.”
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