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DOJ Enforcement Trends: What to Expect and How to Respond

Gain insights into the Department of Justice's enforcement trends, targeted crimes, response strategies, and potential criminal matter scenarios. Learn how to navigate grand jury subpoenas, search warrants, and other legal challenges effectively.

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DOJ Enforcement Trends: What to Expect and How to Respond

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  1. WHEN THE DEPARTMENT OF JUSTICE KNOCKS DOJ Enforcement Trends: What to Expect and How to Respond Jacqueline Arango Shareholder AkermanSenterfitt

  2. What types of crimes and entities are being targeted? • Foreign Corrupt Practices Act • Health Care Industry – Pharmaceuticals and Life Sciences • Emerging Markets – China and India • More Individuals – more than 50 in past 3 years

  3. What types of crimes and entities are being targeted? (cont.) • Health Care Fraud • Creation of Health Care Fraud Task Forces • Criminal Enterprises • Major providers – such as corporations, hospitals

  4. What types of crimes and entities are being targeted? (cont.) • Mortgage and Lender Fraud • Money Laundering • Structuring • Currency Reporting Violations • Financial Institutions who play a role financial crimes

  5. What types of crimes and entities are being targeted? (cont.) • Insider Trading • Professionals/Gatekeepers • Accountants and Auditors • Attorneys and In-House counsel

  6. How is a Criminal Matter Likely to Come Up? • Agency referral from a complaining victim • Civil lawsuit alleging RICO or other fraud allegations • False Claims Act complaint • Questioning of Witnesses/UC Investigation

  7. How is a Criminal Matter Likely to Come Up? (cont.) • Authorized Investigative Demand • Issued by the U.S. Attorney’s Office • In Federal Health Care Investigations • For the production of records (not testimony) • OIG or other Agency Subpoenas • May be used in Criminal and Civil proceedings • Limited to the Statutory Authority of the OIG or Agency

  8. How is a Criminal Matter Likely to Come Up? (cont.) • Grand Jury Subpoenas • May only be used in Criminal investigation • For Records and/or Testimony • Generally issued to Non-Target Third Parties “What wine goes good with grand jury subpoenas?”

  9. How is a Criminal Matter Likely to Come Up? (cont.) • Search Warrants • Issued by a Magistrate Judge Upon Probable Cause • That Evidence of a Crime will be Found • Particularity/Scope/Nexus with Crime • Generally used to Obtain Evidence from Targets of the Criminal Investigation

  10. How to Respond • Grand Jury Subpoenas • FRCrimP 17(c)(2) – Quash or Modify only if “Unreasonable or Oppressive.” • Ascertain from the Prosecutor whether the Witness is a Target or Subject -- U.S. Attorney’s Manual §9-11.151 states: . . . it is the policy of the Department that an "Advice of Rights" form be appended to all grand jury subpoenas to be served on any "target" or "subject" of an investigation. • Corporations have no 5th Amendment Privilege • Attorney-Client Privilege applies (unless Crime Fraud Exception is established)

  11. Search Warrants (cont.) • Talk to Agent in Charge • Whether Company is Target or Subject • Nature of Investigation • Location of Privileged Materials/Note Objection • Documents/Equipment Necessary for Business Operations • Permission to copy documents/obtain a back up disc • Obtain Inventory of Items Seized

  12. How to Respond

  13. How to Respond • Search Warrants • Be Courteous and Calm • Call Defense Counsel ASAP • Read the Search Warrant/Ask for Affidavit • Crime Investigated • Scope of Warrant ie., Location, Documents, Files, Equipment • Date of Warrant • Get names and contact info for Agent and Prosecutor

  14. Search Warrants (cont.) • Speak to Employees • Advise of Rights regarding Interviews by Agents • Right to Refuse • Right to Counsel • Instruct not to Destroy, Remove or Conceal Materials • Instruct to be Cooperative • Assign an Employee to take Notes • Send Non-Essential Employees home

  15. Search Warrants (cont.) • Notify Board of Directors/Management • D & O Insurance Issues • Notify Employees • Suspend Document Destruction Policies • Indemnification Issues • Subject or Target of Investigation • Conduct within Scope of Employment • Hiring of Separate Counsel • Best Practice • Joint Defense Agreement

  16. Other Considerations • DOJ Policy on Prosecution of Business Orgs. • Protections • Atty/Client Privilege • Advancement of Attys Fees • Joint Defense Agreements • 9 Factors for Consideration • Review Compliance Procedures • Are systems appropriate given nature of business? • Parallel Proceedings • 5th Amendment Issues • Stay of Civil Proceedings?

  17. Other Considerations • Internal Investigation • DOJ Policy - Prompt and Thorough Investigation • Factor in Federal Sentencing Guidelines • Benefits/Risks of Voluntary Disclosure • Call Prosecutor • Establish Rapport/Credibility • Gather Available Information • Discuss Cooperation

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