Corporate Investigations and White Collar Defense
In recent years, heightened scrutiny of corporate conduct has resulted in an increasing number of enforcement actions and government investigations. Companies that are the focus of such proceedings face serious risks, including significant financial loss, damage to corporate reputations and individual careers, and even the potential for criminal prosecution of the company and individuals.
McAfee & Taft’s Corporate Investigations and White Collar Defense team of lawyers provide experienced, aggressive advocacy for corporations, boards of directors, and executives, officers and employees who find themselves the target of a formal investigative inquiry. We have a proven track record representing clients in connection with related matters such as internal investigations, enforcement actions and related administrative proceedings, qui tam lawsuits, federal and state grand jury subpoenas, white collar criminal investigations, and civil and criminal jury trials and appeals.
Over the years, we have successfully represented hospitals, multi-physician practices, physicians and other healthcare providers, banks and other financial institutions, government contractors, municipalities, public corporations, and private companies in a broad range of matters, including:
- False Claims Act / Qui Tam (“Whistleblower”) – Litigation brought by relators alleging false claims involving Medicare and Medicaid fraud and government contracting.
- Healthcare Fraud and Abuse – Alleged Medicare and Medicaid fraud, anti-kickback and Stark compliance, improper billing, insurance fraud, and false certifications.
- Antitrust – Alleged price-fixing and bid rigging, as well as alleged vertical and horizontal conspiracies to exclude competitors from the marketplace
- Banking and Financial Fraud – Alleged reporting of false information to lenders in order to obtain loans and the termination of FDIC insurance proceedings.
- Environmental and Safety – Alleged violations of the Clean Air Act (CAA) and Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act, Occupational Safety and Health Act (OSHA), Chemical Security Act, Toxic Substances Control Act (TSCA), as well as compliance with the Comprehensive Environmental Response, Compensation and Liability Act (commonly known as Superfund).
- Securities Fraud – Alleged failures to disclose improper accounting practices, misleading public filings, insider trading, and mail and wire fraud.
- Tax Fraud – State and federal matters including income tax, estate tax and corporate taxation.
Experience has shown that initial government investigations into civil matters can sometimes lead to criminal investigations with more serious consequences, including possible grand jury indictments and litigation. In such cases, our lawyers are skilled at anticipating and handling issues which require a coordinated response with civil and criminal investigators, government authorities, justice departments and court systems.
Whether done at the earliest sign that an audit, inquiry or investigation may be imminent or prior to the completion of a formal government investigation, a timely, comprehensive internal investigation conducted by McAfee & Taft is critical to analyzing the scope of the situation and the risks involved, including any potential civil or criminal liability. Such an investigation involves in-depth personal interviews, document gathering and evidence preservation, a review of internal controls and compliance policies, and a thorough assessment of what a formal government investigation may uncover. In many cases, industry and subject matter experts may be brought in to provide critical technical knowledge and expertise and, when necessary, identify key points to be used in the preparation of a defense.
By conducting an exhaustive yet discreet internal investigation as early in the process as possible, McAfee & Taft is not only able to help clients better understand their risks and options and make informed business decisions, but also to obtain more favorable outcomes on their behalf.
McAfee & Taft has a well-earned reputation for maintaining professional relationships with government investigators and authorities while providing attentive, aggressive representation for our clients. In every case, our focus is on minimizing risk and the effects of adverse publicity while achieving the best possible outcome for our clients in every phase of an investigation. These outcomes have included the avoidance of civil and criminal prosecution once a government investigation has been completed, the avoidance of a grand jury investigation, and the negotiation of favorable settlements before a case is filed.
In addition to representing clients in responding to investigative demands, we also provide on-site emergency response in the event of search warrants being executed on offices and facilities, unscheduled visits by agencies and authorities, and other unforeseen incidents and accidents. As necessary, we will also facilitate the use of public and media relations experts to help minimize the effects of unwanted, and often inaccurate and unwarranted, adverse publicity.
False Claims Act / Qui Tam Lawsuits
The firm has particular experience defending clients in qui tam lawsuits brought by “whistleblowers” on behalf of the government under the federal False Claims Act and similar statutes enacted by municipalities and states. Ramped-up enforcement of the False Claims Act by the Department of Justice, combined with the potential for treble damages as well as mandatory penalties of $5,500 – $11,000 per claim, has made these lawsuits particularly lucrative for plaintiffs and government investigators to pursue. Whether intended or not, the passage of the 2009 amendments to the False Claims Act and 2010 healthcare reform bill has also made it easier for relators to file qui tam lawsuits, meaning that hospitals, physicians and multi-physician groups, and other healthcare providers are likely to be subject to more intense public scrutiny, government investigations, and costly litigation.
Criminal Investigations and White Collar Defense
Our Corporate Investigations and White Collar Defense practice is experienced at responding to federal and state grand jury subpoenas and representing clients in a myriad of criminal investigations. We work aggressively to help clients avoid being the target of far-reaching investigations as well as avoid indictments and lessen liability should an indictment occur. In the event of criminal prosecution, we provide a vigorous, focused defense aimed at obtaining acquittals in trials and at negotiating lesser penalties and reduced sentences.
Corporate Compliance and Training Programs
Like some internal investigations, the development and proper implementation of a corporate compliance program can serve as a sound preventative measure to lessen the risk of public scrutiny and “whistleblower” lawsuits, government investigations and enforcement actions, and potential civil and criminal liability. Our lawyers provide legal and management counseling in the areas of liabilities and exposures, risk communication, internal audits, operational compliance, and development of compliance training, tracking and management systems.
In many cases, the implementation of an effective corporate compliance program may very well influence the outcome of a formal government investigation or civil or criminal lawsuit.
McAfee & Taft also has active programs to prepare clients for interaction with agencies consisting of training that is tailored to meet not only the needs of management, but also provide information to operations and administrative personnel who may have contact with regulators and other investigators. The training is critical to help define for clients the steps to help mitigate the potential for investigations and prosecution, as well as to manage and control investigations and prosecutions that are unavoidable. Crucial elements of the training programs include modules on records creation and communications; the handling of an investigation, including evidentiary issues; and the rights of the client during an investigation, with a focus on ensuring that employees do not trigger allegations of obstruction of justice.
- Representation of a hospital and other parties in a qui tam action alleging that the defendants had conspired to submit and had submitted false or fraudulent claims for medical services and procedures billed under Medicare and/or Medicaid.
- Representation of healthcare clients in a qui tam alleging that defendants defrauded Medicare, Medicaid, and TRICARE through billing for services after having made false certification as to compliance with applicable federal laws and regulations. The complaint also alleged improper self-referrals.
- Representation of all defendants in a qui tam action alleging false claims violations under government contracts for repairs to aviation parts sold to the United States Air Force.
- Defended a municipality in a qui tam action alleging that the city unlawfully granted a cable television franchise without a vote of the people as required by the state constitution.
- Successfully defended the former chief executive officer of a publicly traded laboratory company charged with participating in alleged criminal conspiracies to commit Medicare fraud and securities fraud. In the former count, the government brought what is believed to be the first federal prosecution of laboratory executives for alleged violations of the anti-kickback law. The client was acquitted on both counts after a three-week trial.
- Representation of government contractor in False Claims Act lawsuit brought by a relator and corresponding grand jury investigation.
- Pre-litigation negotiations with the Department of Justice and OIG to resolve alleged fraud, including violations of the False Claims Act and anti-kickback statutes, by large health systems, specialty hospitals and physicians.
- Representation of client in equity skimming allegations brought by Department of Justice on behalf of Department of Housing and Urban Development.
- Successful defense of qui tam action against client/supplier of medical supplies to the Oklahoma Department of Veterans Affairs.
- Represented prime contractor against $1.5 million False Claims Act demand brought by U.S. Attorney on behalf of federal government agency for return of monies paid on contracts that were allegedly not completed in full compliance with the government contract. The claim was settled for a “walk away” (i.e., no money changing hands) prior to suit being filed due to threat of contractor’s bad faith counterclaim against the government agency and client’s exacting record of communications with agency throughout contractual relationship.
- Representation of a client investigated by the Internal Revenue Service (IRS) and Department of Justice (DOJ) for alleged conspiracy to file false tax returns.
- Representation of a client investigated by the Securities & Exchange Commission (SEC) for alleged insider trading of the stock of an oil and gas company.
- Representation of energy industry clients subjected to Federal Trade Commission investigations of pricing practices.
- Representation of clients in the preparation of responses to Clean Water Act 308 and 311 demands and Clean Air Act 114 demands.
- Representation of midstream industry clients in responding to OSHA National Emphasis Program refinery inspections and subsequent citations.
- First responder and representation of facility subjected to criminal raid conducted by the Environmental Protection Agency (EPA) resulting from “whistleblower” complaints.
- Legal representative on emergency response team for multiple environmental issues related to petroleum releases, including subsequent resolution with EPA and DOJ.
- Representation of healthcare clients in audits conducted by governmental entities and governmental contractors, including the Office of Inspector General (OIG), Medicare Administrator Contractors (MACs), Medicaid Integrity Contractors (MICs), Recovery Audit Contractors (RACs) and Zone Program Integrity Contractors (ZPICs)/Program Safeguard Contractors (PSCs).