Civil and criminal investigations by regulatory agencies into alleged corporate misconduct have skyrocketed in recent years. These enforcement efforts are further fueled by whistleblower lawsuits, congressional scrutiny and media reports, creating a perfect storm for those who find themselves in the government’s crosshairs.
Shook, Hardy & Bacon’s white collar and government investigations team represents companies and individuals in criminal, civil and regulatory government enforcement actions at both the state and federal levels.
Actions initiated by the U.S. Department of Justice and other regulatory agencies often involve parallel state and federal cases, third-party litigation and highly publicized speculation. To meet these challenges, Shook employs a comprehensive approach, combining defense expertise with effective compliance counseling, a robust eDiscovery team, and an advanced public relations strategy. Our team also advises on preventive measures, which can circumvent expensive and potentially damaging litigation.
Because clients often desire to avoid the expense and exposure of trial, Shook attorneys work to resolve criminal matters short of indictment. Preparation for the possibility of investigation includes educating executives and employees about their rights and responsibilities as witnesses or targets in an office search or drop-in interview. This education minimizes the disruption of an unexpected enforcement initiative, facilitates the protection of company information, and provides peace of mind to the company’s workforce.
We also work with clients to establish and maintain effective corporate compliance programs, including legal risk assessments, internal investigations and record-keeping audits.
To keep clients up-to-date on compliance matters, we closely monitor state and federal regulatory developments. Our team maintains contacts at key administrative agencies (including the U.S. Department of Justice, Food and Drug Administration, and the Department of Health and Human Services’ Office of Inspector General) to expedite crucial conversations at critical moments.
FCPA and Anti-Corruption Compliance
Combating global corruption—both real and perceived—has become a real and expanding concern, both domestically and abroad. One of the biggest challenges for multinational corporations is determining how the Foreign Corrupt Practices Act and similar anti-corruption laws in foreign jurisdictions may affect their business objectives and practices.
Shook counsels clients on how to best manage corruption risks. Our experience includes:
- Conducting internal investigations and transactional due diligence worldwide;
- Responding to criminal and regulatory enforcement inquiries and proceedings, as well as related administrative and civil actions;
- Advising on updates to existing compliance programs;
- Assisting in the development of new compliance programs;
- Providing anti-bribery training to corporate officers, employees and relevant third-party agents and subcontractors;
- Conducting due diligence on third-party business partners, including consultants, and structuring relationships with them; and
- Handling communications with, and if necessary, defending matters against the Department of Justice, Securities and Exchange Commission, and other regulatory authorities.
Because of its national and global scope of offices and resources, and because of its unique and robust eDiscovery capabilities, Shook attorneys are positioned to conduct internal investigations related to a myriad of potential compliance issues. Our experience includes:
- Advising U.S. and foreign-based companies in the conducting of national and multijurisdictional internal investigations involving federal enforcement matters (including Anti-Kickback Statute, RICO statutes, SEC regulations, and FCPA requirements).
- Providing legal advice and support in the conducting of internal investigations involving state enforcement matters (including state Consumer Protection Acts).
- Representing clients in Congressional investigations (including such issues as drug pricing and compliance with Anti-Kickback Statute).
- Providing independent review of allegations raised on company ethics hotlines regarding employment discrimination and harassment issues.
False Claims Act
The False Claims Act (also known as the qui tam whistleblower statute) is another mechanism used more and more often in recent years by private plaintiffs and federal and state governments to seek civil recoveries and extensive penalties from companies who receive compensation of any kind from either the federal or state government. Shook attorneys are well-versed in the very extensive body of jurisprudence that accompanies these statutes, and counsel their clients in the very best means of defense. Our experience includes:
- Serving as defense counsel to Fortune 500 pharmaceutical manufacturers in an array of FCA actions, involving alleged violations of the Medicaid rebate statute, improper sales and marketing practices, and off-label promotion.