What To Do When The Government Calls - Part II

Tuesday, February 1, 2005 - 00:00

Who Is Under Investigation?

If asked, government prosecutors will usually advise your attorney why they have contacted your company. They will also likely respond to the question whether your company "fits" within one of the following categories:

  • Third-Party: A "third-party" is someone the government currently believes did not commit any wrongdoing but may have relevant information regarding the government's target or subject (see below) through business or personal associations.

Example: Your company is a brokerage house or bank, the government is investigating one of your clients, and it simply wants to examine your client's trading or banking records.

  • Subject: The government uses the term "subject" to describe a corporation or individual whom it believes may be involved in illegal conduct. The investigation is a means to discover facts and information that will allow the government to make a further assessment on that point.

Example: The government has received a tip that your company is overcharging customers but has no direct evidence as yet to support the allegation.

  • Target: If the government has already designated your company as a "target" of its fraud investigation, then it believes you have likely engaged in illegal conduct and has some evidence to that effect.

Example: One of your employees and one of your competitor's employees have each independently informed the government that your two companies have been agreeing to illegally fix prices.

After learning in which of these categories the government currently views your company, your counsel will want to find out what prompted the investigation in the first place; e.g., a whistleblower, an industry-wide investigation, or perhaps a computer audit programmed to kick out "suspicious" financial patterns. The inquiry that has brought the government to you may be civil or criminal in nature, or in many cases these days, both.

Providing Clear And Specific Instructions To Employees

As soon as a company becomes aware of an investigation, its counsel must approve the language for specific instructions to its employees. These instructions usually explain a little about the nature of the investigation under way, and address employees' rights and responsibilities during the course of the investigation. The instructions also frequently contain a reaffirmation of the company's commitment to high ethical standards and advise employees that, as a routine matter, government representatives may seek to interview them.

Depending on the specific circumstances at hand, employees should be encouraged to seek legal counsel on such issues as:

  • Their absolute right to meet with government investigators or, absent some form of legal compulsion (i.e., a subpoena), their equally absolute right to refuse; and

  • Their right to be accompanied by an attorney, either one of their own choosing or the corporation's counsel, to any interview with the government.

News of a government investigation will undoubtedly travel quickly throughout your corporation. By providing a sense of what is happening and general instructions to your employees, you can help prevent inaccurate rumors and panic from needlessly spreading.

Should Companies Always ConductA Parallel Investigation In Response ToA Government Probe?

Your company's attorney can assess the need and, if appropriate, quickly engage an experienced investigator or forensic accountant to assist counsel in learning what may be going on inside your company. Each of these key resources usually plays an essential but different role in responding to a government fraud investigation:

  • An investigator will assist counsel in gathering relevant documents, locating key witnesses and doing important background and database research.

  • A forensic accountant can review complicated financial data and help the company's attorney to determine if the corporation has been the victim of a fraud and if so, understanding the specific scheme.

When your attorney, rather than the company itself, retains these key resources, legal privileges and protections will be in place.

Before beginning the internal investigation, employees should be advised that an internal inquiry is underway, with some explanation of what to expect. The company should work with its outside counsel to ensure that it conveys information to the employees in a way that minimizes anxieties, to the extent possible, while accurately describing the situation at hand.

Companies should almost always perform some type of internal investigation as soon as they become aware that they are under investigation.

In conducting an internal investigation, your attorney will now have to take into account the federal government's recent tactic of forcing corporations to turn over otherwise privileged material gathered during the course of an internal investigation if the corporation wants to be deemed "cooperative." One of the factors the government now considers in deciding whether to charge a company with criminal acts is the government's view of the company's cooperation in the investigation.

Counsel will need to weigh how to conduct the investigation, taking into account that the government may eventually gain access to the information gathered. Indeed, your attorney has to be especially careful that potential class-action plaintiffs or other civil litigants do not also gain access to your internal investigation. Experienced counsel will provide guidance to you on these important considerations.

Once the internal investigation is complete, the company and its counsel will analyze the information and assess the company's position with respect to any potential government claims with a view to determine if a settlement is necessary or advisable at that stage.

Understanding "Joint Defense"Or "Common Interest" Agreements

Depending on the number of parties implicated in a government investigation, and the number of attorneys hired to represent the parties, a joint defense agreement may be advisable. Such an agreement allows parties with "common interests" to share information without waiving their attorney-client privilege.

While the government understandably doesn't like joint defense or common interest agreements, having a legal means of communicating information among counsel can make a difference in weathering the investigation. Whether to participate in a joint defense agreement is a matter for counsel to decide, but it should always be considered.

Have an Action Plan

Finally, it may prove beneficial to consider having some type of a pre-existing plan in place to respond to a government investigation. A step-by-step mechanism, by which the company will organize and facilitate its cooperation with any governmental or regulatory agency in the event of a fraud investigation, could prove central to an effective outcome. At a minimum, it eliminates much of the confusion and chaos that often result when the government shows up unexpectedly.

Conclusion

Never rely on "self-help" strategies when faced with a fraud investigation. Management acting on its own without counsel can lose the opportunity to safely navigate its first contact with the government's investigators. Moreover, as you have seen, a quick and coordinated response by a company and its counsel can:

  • Significantly minimize the disruption to daily routine;

  • Instruct employees as to their rights and obligations;

  • Lessen the scope of the information requested, which can save literally hundreds of thousands of out-of-pocket dollars and the loss of countless non-productive work-hours;

  • Identify and properly address corporate information protected by attorney-client or other important legal privileges; and

  • Reduce the risk of a criminal indictment or civil charges ever being formally filed against the corporation.

There has never been a higher probability that your business will become directly or indirectly involved in a government fraud investigation. With the right advice, it need not end in disaster.




Two Noted Lawyers Join Arent Fox's Intellectual Property Group

WASHINGTON - Arent Fox announced the addition of Pamela M. Deese and Dr. Rochelle K. Seide as partners in the firm's growing intellectual property practice. Ms. Deese and Dr. Seide will reside in Washington and New York City, respectively.

Intellectual property group leader Michael Grow said, "Pamela and Rochelle are superb additions to our rapidly expanding group. Pamela's strength in advertising and licensing and Rochelle's in life sciences have widened the scope of an already stellar practice. We are delighted that they have joined Arent Fox."

Ms. Deese has an extensive background in intellectual property law, including knowledge and experience in litigation, intellectual property licensing and advertising. Before joining Arent Fox, she was a partner in the intellectual property group at Dorsey & Whitney in Washington. There, her responsibilities included evaluation of merchandise and licensed properties, drafting and negotiating licenses and related agreements, review of advertising materials for regulatory compliance and litigating intellectual property and other commercial disputes.

Ms. Deese received her J.D. in 1983 and a B.S. in political science in 1980 from American University. An author of numerous articles on intellectual property, she has also been profiled in IP Law & Business and quoted in Investor's Business Daily, Brandweek and CNN/Money.

Dr. Seide concentrates her practice on all facets of patent law, especially patents and transactional matters involving biotechnology, chemistry and pharmaceuticals. She has litigation experience before the federal courts, as well as experience in inter partes patent interferences in the U.S. Patent and Trademark Office in biotechnology, pharmaceutical and medical device technologies.

Before joining Arent Fox, Dr. Seide was a partner at Baker Botts in New York. She received her J.D. from the University of Akron School of Law in 1984. She has also received a Ph.D. in human genetics, an M.S. in biology and immunology and a B.S. in bacteriology and immunology. A frequent lecturer on biotechnology-related issues, she was listed in the Chambers Global The World's Leading Lawyers, 2004-2005.

Ms. Deese and Dr. Seide are the latest additions to Arent Fox's expanding intellectual property group. During the past eight years, the practice has grown from one to 60. As a result, Arent Fox has designated this practice area as a core engine in its strategic plan. The growth has been attained by selectively attracting experienced lateral partners with established patent, trademark, and copyright practices.





intro2

Steven Kimelman co-chairs Arent Fox's Corporate Compliance and Government Enforcement practice group and concentrates his practice on complex civil fraud litigation and white-collar criminal defense. Mr. Kimelman also served as an Assistant U.S. Attorney in the Eastern District of New York where he held the positions of Deputy Chief of the Criminal Division and Chief of the Frauds Section. The views expressed herein are those of the author and are not intended to convey specific legal advice.

Please email the author at kimelman.steven@arentfox.com with questions about this article.