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Government Enforcement Exposed - "The GEE"
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12 Jul 2016 Prison Sentence for Responsible Corporate Actors Upheld

  On July 6, 2016, the U.S. Court of Appeals for the Eighth Circuit, by a 2-1 vote, held that corporate executives Austin “Jack” DeCoster, 81, and his son Peter DeCoster, 51, could be sentenced to terms of imprisonment for their failure to prevent or remedy violations of the federal food-safety laws pursuant to the Responsible Corporate Officer or “Park” Doctrine. The DeCosters were each sentenced to three months in prison and $100,000 fines following their guilty pleas to misdemeanor violations of 21 U.S.C. § 331(a) as “responsible corporate officers” of Quality Egg, LLC, under the Food Drug & Cosmetic Act (FDCA). In their appeal of the District Court’s sentencing order, the DeCosters argued their prison sentences were unconstitutional and, alternatively, that their sentences were…

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30 Jun 2016 What Happens in Europe, Stays in Europe? Applying RICO to Foreign Injury, Conduct

  Recently, the U.S. Supreme Court handed down its decision in RJR Nabisco, Inc. v. European Community, et. al., clarifying—in part—the extent to which injuries sustained outside the United States and racketeering acts committed abroad give rise to civil claims for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1964. The group most definitively affected as a result of the opinion is private RICO plaintiffs who have not suffered an injury inside the United States. For them, the decision forecloses the possibility of civil RICO recovery.   The case is also certain to be cited in forthcoming criminal RICO cases, since the Supreme Court analyzed the extraterritoriality of RICO’s substantive criminal conduct provisions using the same analysis as when it separately…

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28 Jun 2016 McDonnell Decision Indicates Supreme Court’s Desire to Limit Application of the Honest Services Fraud Statute

  On June 28, the Supreme Court issued its opinion in McDonnell v. United States, one of the most anticipated opinions of the October 2015 term for white collar practitioners. In the unanimous ruling in favor of former Virginia Gov. Bob McDonnell, the Court again limited application of the “honest services fraud” statute (18 U.S.C. § 1346), as applied through the federal bribery statute (18 U.S.C. § 201), making it harder to prosecute public officials on corruption charges. The decision holds that an “official act” sufficient for a bribery conviction requires more than “setting up a meeting, hosting an event, or calling an official.” At trial and on appeal, prosecutors had successfully argued that an “official act” included “nearly any activity by a public official.”…

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17 Jun 2016 Supreme Court Preserves Implied Certification Theory in Closely Watched False Claims Act Case

In the much-anticipated ruling on Universal Health Services Inc. v. United States ex rel. Escobar, the United States Supreme Court today held that False Claims Act liability can be predicated on an implied certification theory of liability.  (For the factual background and procedural history of the case, see our earlier blog post about the court’s grant of certiorari.) The court also clarified the materiality threshold that must be satisfied to pursue actionable claims under this theory, finding that materiality can be established with or without express language in the regulations that it is a condition of payment.   In upholding the theory of implied certification, the court addressed the situation under which a misleading omission could render a claim false or fraudulent, stating that when…

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12 May 2016 Internet Infamy: Criminal Registries and White Collar Crime

Implementing what the New York Times has dubbed “a scarlet letter of sorts on the state’s financial felons,” Utah has now finalized and published its online White Collar Crime Offender Registry.   Authorized by HB 378 of the Utah Legislature’s 2015 General Session, the Registry is publicly available online and includes offender photographs, physical descriptions and any known aliases.  The Registry encompasses all persons convicted of a second-degree felony since Dec. 31, 2005, for the following offenses: securities fraud, theft by deception, unlawful dealing of property by fiduciary, fraudulent insurance, mortgage fraud, communications fraud and money laundering.  A first-time offense secures an offender a place on the Registry for 10 years. A second offense earns another 10 years and a third offense places an offender…

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29 Apr 2016 Accounting Fraud Getting Increased Attention from the SEC and Class Action Counsel

Accounting and financial disclosure issues are increasingly becoming the focus of litigation – both with the Securities and Exchange Commission (SEC) and the plaintiffs’ class action bar – according to recent pronouncements from the SEC and a leading research firm that tracks securities class actions.   Last week, the SEC announced two financial fraud cases against companies and their former executives, accusing them of various accounting failures that gave investors inaccurate views of company finances. These cases appear to be among the fruits of the SEC’s Financial Reporting and Audit Task Force, created in 2013 to strengthen the SEC’s efforts to identify securities law violations relating to the preparation of financial statements, issuer reporting and disclosure and audit failures. The Task Force’s efforts have taken…

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08 Apr 2016 Department of Justice Rolls Out FCPA Enforcement Pilot Program

On April 5, the Department of Justice (DOJ) issued a press release and accompanying memorandum detailing what it is terming a one-year FCPA “pilot program” as part of an effort to provide more transparency and guidance to companies on the benefits of self-disclosing FCPA violations and cooperating with government investigations. The memorandum sets out three components of the DOJ’s “enhanced FCPA enforcement strategy,” which are:   Increasing law enforcement resources for FCPA prosecutions by hiring 10 new prosecutors for the Fraud section’s FCPA unit; Strengthening coordination with foreign counterparts in order to share leads, documents and witnesses; and Establishing the pilot program to motivate companies to voluntarily self-disclose FCPA-related misconduct, cooperate and remediate.   The central theme of the enhanced strategy appears to be the…

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01 Apr 2016 DOJ Launches Targeted Elder Justice Task Forces

  On March 30, the Department of Justice (“DOJ”) announced the formal launch of 10 regional Elder Justice Task Forces designed to identify nursing homes and other long-term care (“LTC”) facilities that provide “grossly substandard care” to residents.   Similar to DOJ’s previously launched Medicare Fraud Strike Force and Health Care Fraud Prevention & Enforcement Action Team (“HEAT”) initiative, the newly created Elder Justice Task Forces will focus on coordination and information sharing among federal, state and local enforcement agencies to combat suspected cases of physical abuse and financial fraud. Each task force will consist of representatives from the U.S. Attorneys’ Offices, state Medicaid Fraud Control Units, state and local prosecutors’ offices, the Department of Health and Human Services, state Adult Protective Services agencies, Long-Term…

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24 Mar 2016 The Best Policy: Fifth Circuit Finds Prosecutorial Misconduct and Vindictiveness

  Giving credence to the adage that honesty is the best policy, a panel from the Fifth Circuit Court of Appeals in United States v. Dvorin affirmed the district court’s finding that the lead prosecutor “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” during a bank fraud prosecution by withholding material evidence concerning the credibility of a key government witness, and also by knowingly using false testimony to obtain a conviction. The panel also found that the government failed to overcome the presumption of prosecutorial vindictiveness because it added an additional forfeiture notice once forced to retry the case as a result of prosecutorial misconduct during the first trial.   In 2012, a grand jury indicted Jason Dvorin…

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23 Mar 2016 A New Approach: DOJ Antitrust Division in Wake of Yates Memo

  For more than five years, the Department of Justice’s (DOJ) Antitrust Division and the FBI have had the automotive parts industry under a microscope. In September 2015, the DOJ announced it would undertake a policy shift to focus more ardently on the investigation and prosecution of individuals responsible for company misconduct. This new policy shift may already be influencing the manner in which the Antitrust Division is conducting criminal investigations.   The ongoing federal investigation into price fixing, bid rigging, and other anticompetitive conduct has netted at least 38 corporate convictions, 58 indictments of corporate executives, and approximately $2.6 billion in criminal fines. Most recently, INOAC Corp., an auto parts supplier and major player in the advanced materials industry, pled guilty for conspiring to…

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