Leading issues in white-collar criminal defense, government investigations and regulatory compliance were at the center of discussion at our 2025 White-Collar Symposium. Here are some of the key insights attendees took away from the event:
A Conversation With a Regulator: The Internal Revenue Service and the Future of Federal Tax Enforcement
Featuring former IRS Commissioner Danny Werfel and Fox Rothschild Partners Matthew Lee and Elizabeth Blickley
- Reductions in force and funding under the second Trump administration have significantly reduced IRS enforcement, tax administration and customer service capabilities.
- Rapid leadership turnover and the appointment of Treasury Secretary Scott Bessent as Acting IRS Commissioner and Assistant Secretary of the Treasury Kenneth Kies as Acting IRS Chief Counsel has also left the IRS without clear day-to-day permanent leadership, increasing delays in decision-making that will further hamstring new enforcement efforts.
- Still, artificial intelligence presents an opportunity for the IRS to do more with fewer resources. Taxpayers should remain vigilant, especially if the IRS implements AI-based solutions without proper human oversight that could lead to inadvertent over-surveillance of confidential taxpayer information.
The Trump Administration 2.0
Featuring Dave Herman, General Counsel, Credova; Andy Kroll, Reporter, ProPublica; Jonathan Schnatz, Principal, Withum; Mark Varacchi, Founder, Federal Prison Consultancy and Moderator Andrew Bernstein, Partner, Fox Rothschild
- Be on the lookout for a shift in focus regarding enforcement priorities such as increased emphasis on tariff collections and combating Transnational Criminal Organizations and increased scrutiny of Medicare participants and government contractors. Now is the time to review the relevant related programs and processes such as AML and KYC procedures, DEI-related programs, and country-specific guidance to employees and other stakeholders.
- While the federal government may have shifted its focus away from certain sectors and types of conduct, be aware of increased enforcement efforts at the state level. It is important to understand the priorities of state regulators and law enforcement agencies, and the implications that new state policies may have for businesses.
- When negotiating plea deals with the government in federal criminal matters, seek to avoid including charges or guideline enhancements that may prevent eligibility for certain relief under the First Step Act, which is championed by President Trump, and can reduce a defendant’s time in Bureau of Prisons custody. Maintaining eligibility provides the widest range of outcomes and can be another useful bargaining tool in plea negotiations.
- Defense attorneys representing corporations or individuals who are either under investigations that started during the previous administration or were indicted prior to the current administration taking office should strongly consider reengaging with federal prosecutors and seek a reevaluation of their clients' cases that seem out of alignment with the current administration’s enforcement priorities, especially if they can argue their client’s case or investigation was the result of “lawfare” or “government weaponization.”
Fraud, Waste, Abuse & The False Claims Act
Featuring Marc Raspanti, Partner, Pietragallo Gordon Alfano Bosick & Raspanti and Fox Rothschild Partners Keeley McCarty, Jana Volante Walshak and Kevin Raphael (Moderator)
- False Claims Act (FCA) enforcement priorities in 2025 include health care, defense contracts and government procurement, tariffs and customs, PPP Loans and Covid relief programs, cybersecurity related to government contracts and private equity.
- Health care enforcement will likely focus, pursuant to the HHS-OIG work plans and past cases, on Medicare Advantage, particularly whether brokers are being paid to unlawfully direct Medicare Advantage enrollees to providers or particular insurance plans, or whether providers (on their own or in conjunction with insurance companies) are falsely submitting diagnosis codes to increase Risk Adjustment reimbursements.
- The Department of Justice (DOJ) has formalized a policy where, upon receipt of an FCA matter (from either relators or by agency referral), DOJ’s civil and criminal units will cooperate to investigate the alleged fraud from the outset. The increased chance of parallel civil and criminal proceedings requires an understanding of the pitfalls of both civil and criminal investigations by the DOJ. Greater care should be given to the initial assessment of an FCA matter and in the response to civil investigative demands for documents, interrogatories and depositions.
- President Trump’s executive order regarding DEI, and the DOJ’s subsequent memorandum on the enforcement of that executive order, highlight the use of the FCA to further policy pronouncements. The federal government can now require certifications from recipients of federal funds, including in those in the defense industry and other entities that contract with the government, that they are complying with federal anti-discrimination laws, and has announced that such certifications are material to payment. The executive order also invites whistleblowers to file lawsuits against any company that receives federal funds and is alleged to have an illegal DEI program. It is important for companies to understand the current landscape and audit policies, practices and online presence to ensure compliance with the administration’s interpretation of federal anti-discrimination laws. While there are several potential legal challenges to such FCA matters — whether the executive order is legally binding, and whether the administration can declare per se materiality despite the Supreme Court precedent inEscobar and its progeny, among others — the government is highly likely to pursue FCA matters on this basis in coming years.
- Companies are increasingly utilizing federal agency “reward programs” to report competitors, without having to invest the time and resources into a qui tam action. For competitors, legal remedies and damages may be less important than governmental pressure to cease certain challenged actions by competitors, particularly in tariff and customs matters.
- Keep an eye on United States ex rel. Zafirov v. Florida Medical Assocs., LLC, where the District Court held that private relators pursuing FCA cases without government intervention are in violation of the Appointments Clause of the U.S. Constitution and that such cases are, therefore, unconstitutional. The case is currently on appeal to the 11th Circuit, with oral arguments scheduled for December. Cases with similar constitutional challenges are pending in other circuits. The matter is likely destined for the Supreme Court, where three current justices, in other decisions, have expressed sympathy for the position.
- The attorneys general of certain states will likely take more affirmative and expanded roles in both federal FCA matters and the enforcement of alleged fraud, abuse, and waste under their respective states’ false claims acts.
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