Embed Size (px)
Citation preview
We have all seen the headlines, “Nation’s Largest Nursing
Home Pharmacy and Drug Manufacturer to Pay $112
Million to Settle False
Claims Act Cases” and “Company Agrees to Pay $2.3
Billion to Settle Government Investigation into Fraud.”
Enforcement actions are up and unexpected visits from the
government may be problematic for a variety of reasons.
As a result, every attorney should give consideration to
what steps to take should the government show up
unannounced.
Managing the Search
When you first learn of the government’s arrival, you
should immediately proceed to the site of the
investigation. Introduce yourself to the government agents
and document their names and organizations based on
badges and business cards. Typically, an FBI badge or a
Grand Jury subpoena indicates it is a criminal
investigation. An OIG presence may be either criminal or
civil or both. If the investigators are interested in
searching the property, ask for a copy of the subpoena or
search warrant authorizing the search. Help the agents
identify the items they are entitled to collect based on the
search warrant or subpoena. Be polite and respectful of
the authority these individuals have so as not to interfere
with the investigation. However, it is strongly advised that
you never consent to an expansion of the search. You want
to minimize the company's exposure by limiting
government access to only those areas they have a search
warrant to inspect.
Designate an employee to document the search, noting all
areas searched, investigator's comments, questions,
instructions, requests and actions. If there is privileged or
confidential information at the location, keep it separate
and labeled accordingly. Before the government leaves,
ask the lead investigator to note the date and time the
search was completed as well as sign the inventory of
items taken.
Managing the Employees
As investigators are conducting their search, take time to
manage your employees. Inform everyone that no
documents or evidence is to be destroyed or hidden.
Employees are generally not required to speak with
government investigators, but let the employees know
that they will not be reprimanded for talking to
investigators.
If employees decide to talk, inform them of their right to
have an attorney present for the interview. The company
will need to decide if it will provide counsel to the
employees, which can be a tricky situation. Often
attorneys will not be able to represent both the company
and an employee in an investigation due to potential
conflicts of interest. As a result, the company will need
to consider whether the employee should be represented
by separate counsel before providing counsel to an
employee in an interview.
(continued on page 2 )
What to Expect When YouWhat to Expect When You’’re Suspectedre SuspectedBy Sonya Smith, Laura Williams, and Claire Cowart Haltom
(continued from page 1)
Generally speaking, if the government's presence will
disrupt business operations, it may be best to send the
employees home. This is true for two reasons: first, it
expedites the government's visit and second, it keeps
employees from any possible "casual" conversations with
government agents which could be used against the
company at a later date.
Managing the Message
If the visit gains attention, the company may receive calls
from clients, investors or media outlets. Based on the
situation, determine if a public response should be made in
the form of a press release or message to clients and
investors. While a public statement may seem like a good
idea, be aware that any public statements on the
investigation could come back to haunt you if the
investigation proceeds.
The Government is Gone, Now What?
Contact Counsel
If you have not done so already, it may be time for you to
contact outside counsel. Counsel may conduct an internal
investigation, determine the scope of the government’s
investigation, and/or interview employees who spoke with
the government. Outside counsel should conduct the
internal investigation and protect confidential and
privileged information. Counsel can advise you on any
additional steps that may be needed including reporting
requirements and documents that should be produced.
Even if counsel is not retained at this point, make sure that
all the documents related to the investigation are preserved.
OYEZ! Winter 2009 – Page 2
Keep the Government Informed
Although the initial knock may be over, if the government
is sticking around or you have an ongoing investigation,
keep the government informed, especially if there are any
delays in the production of documents. Full and complete
compliance with any subpoenas is a MUST. But, be
careful not to provide too much information or to provide
privileged information.
Protect the Privileges
All documents generated at the request of an attorney
should be appropriately marked. Maintain separate files
regarding the investigation and limit who can access the
files. (Same goes for emails about the investigation.)
Prevention Compliance Plan
As always those most prepared end up in the best position -
pre-knock preparation is key! You should develop
effective policies and procedures by establishing a
company policy and training your employees.
(continued on page 3 )
OYEZ! Winter 2009 – Page 3(continued from page 2)
Develop Effective Policies
A policy regarding government investigations should
include the following guidelines:
1. Cooperate fully with any authorized investigation or
audit
2. Assert all protections afforded by law
3. Instruct all employees to tell the truth in all
circumstances
4. Never retaliate against anyone who cooperates with
the investigation or who reports possible wrongdoing
Your company should also establish a procedure for the
response to a government investigation including proper
procedures to protect both the company and the employees.
You should also implement a policy that directs all
employees to report any and all improper or illegal activity
to their supervisor or the Compliance Officer.
Train your Employees
The employees should be familiar with company policy
and you should ensure that employees know their rights.
Instruct employees to report when someone asks them to
do something unethical, illegal or questionable. You can
minimize whistleblowing risk through exit interviews with
employees that ask departing employees whether they have
any direct knowledge of any improper or illegal activity
within the organization. Train your employees that email
is not a casual conversation and that it should be treated in
a professional manner at all times.
Consider Conducting an Internal Investigation
An internal investigation is a factual review and legal
analysis that is conducted by compliance officers, internal
audit departments, outside counsel, or all of the above. It is
usually independent of a government investigation. You
may want to conduct an internal investigation if you have
reasonable belief of a suspected activity. You may use it for
the discovery of potential error, when there are violations of
a compliance program or policy, complaints, reports from a
compliance hotline, or the government has begun to
investigate. The advantage to the internal investigation is
that you can correctly focus the nature and scope of the
investigation. By interviewing witnesses before the
government does, you may be able to identify potential
problem areas before the government does.
Preparation before the government knocks may save
companies valuable time and resources. A prevention
compliance plan offers the best opportunity to stop potential
violations and implement corrective actions so that you and
the companies you represent do not end up in the headlines.
(continued on page 4 )
OYEZ! Winter 2009 – Page 4
Claire Cowart Haltom, associate in the
Baker Donelson's Nashville office, is a
member of the Health Law Department. Ms.
Haltom concentrates her practice on the
legal, regulatory and business issues related
to health care services. She assists health
care providers (both for profit and not-for-
profit) with regulatory compliance and
licensing issues, business entity formations,
corporate governance, mergers and
acquisitions, and other general business
transactions. Additionally, Ms. Haltom
provides strategic policy and government
relations advice to clients on federal and
state public policy matters. She is an active
member of the American Health Lawyers
Association (AHLA).
Email: [email protected]
Sonya R. Smith, an associate in the Baker
Donelson Nashville office, concentrates her
practice in civil litigation including long
term care litigation and health care
litigation. She has been successful in getting
claims dismissed for national nursing home
chains. Ms. Smith has participated in several
state jury trials and successfully defended a
multi-million dollar lawsuit in federal court
on a personal injury matter for a national
hotel chain. Ms. Smith's community
involvement includes Habitat for Humanity
and the Tennessee Junior Angus Association.
Email: [email protected]
Laura Williams is an associate in the
Nashville office of Baker Donelson. She is a
member of the Advocacy Department, where
she focuses on all areas of litigation.
Email: [email protected]
What to Expect When YouWhat to Expect When You’’re Suspectedre Suspected –– The AuthorsThe Authors……..
OYEZ! Winter 2009 – Page 5
The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division The Young Lawyers Division
Annual MeetingAnnual MeetingAnnual MeetingAnnual MeetingAnnual MeetingAnnual MeetingAnnual MeetingAnnual Meeting
took place on October 28, 2009 at the famous Buffalo took place on October 28, 2009 at the famous Buffalo
Billiards, a pool hall and bar, on Second Avenue in Billiards, a pool hall and bar, on Second Avenue in
Downtown Nashville. The Annual Meeting is where Downtown Nashville. The Annual Meeting is where
the Young Lawyers Division announces the new slate the Young Lawyers Division announces the new slate
of board members and officers for the upcoming year of board members and officers for the upcoming year
and celebrates the hard work and achievement of the and celebrates the hard work and achievement of the
YLD during the past year. It is usually held at a bar or YLD during the past year. It is usually held at a bar or
other drinking establishment because...well it just other drinking establishment because...well it just
makes the meeting shorter and better. A good time makes the meeting shorter and better. A good time
was had by all. Good luck to Phil, our new board was had by all. Good luck to Phil, our new board
president, and our new YLD Board.president, and our new YLD Board.
OYEZ! Winter 2009 – Page 6
NBA Launches Modest Means Initiative After First of the Year
“Access to Justice for the Working Poor” is what the NBA’s new Modest Means Initiative is all about. Under the leadership of incoming president, Jonathan Cole, the new program will provide low-cost legal representation for those in our community who make too much to qualify for pro bono or Legal Aid, and too little to hire a private attorney. NBA’s Lawyer Referral and Information (“LRIS”) program will administer the program and the Nashville Bar Foundation has agreed to fund it for the first year.
The program will match clients with attorneys in the areas of: (1) domestic relations, (2) consumer debt (other than bankruptcy), (3) landlord/tenant, and (4) small business creation and management, which have been identified as areas of critical needs of assistance in Nashville. Qualified clients (with incomes between 200% and 250% of the federal poverty level) should contact the NBA’s Lawyer Referral Service at 615-242-6546. They will submit personal and financial information and pay a $25 referral fee and retainer of up to $300 (representing four hours of work).
Lawyers interested in serving on the panel can apply at: http://www.nashvillebar.org/LRISMember.html
After confirming their license is current, CLE is up to date, and malpractice coverage is in place, MMI attorneys will charge a maximum of $75 per hour for their work.
Similar programs have been successfully implemented by bar associations all across the country. Though some details are likely to be tweaked after a six month review, this new program is expected to make a real difference in providing Nashville’s working poor access to justice. For more information, contact [email protected] or 242-9272.
###
Matt Potempa is a solo practitioner in Nashville who served on the MMI taskforce with NBA President Jonathan Cole, Executive Director Gigi Woodruff, NBA LRIS staffer, Wendy Cozby, Sonya Smith from Baker Donelson, and Kim Thompson. Matt can be reached at [email protected] or 255-5007.
OYEZ! Winter 2009 – Page 7
President - Phil [email protected]
Immediate Past President
President-ElectMary Taylor Gallagher
Secretary - Erin Palmer [email protected]
Treasurer - Sara [email protected]
Events Director - Nicole Paulk
Membership DirectorElizabeth [email protected]
Professional Development DirectorEmily [email protected]
Public Service DirectorChristopher [email protected]
Recruitment - Rebecca [email protected]
Lauren [email protected]
ABA Liaison/TBA LiaisonColleen [email protected]
Matt Potempa
NBA/YLD Fellows - Josh [email protected]
Law Student MembershipPatrick [email protected]
Napier-Looby LiaisonJonathan [email protected]
CLE - Matt [email protected]
Frank [email protected]
Quality of Life - Lauren [email protected]
OYEZ! - Justin [email protected]
Jonathan Richardson
Gary [email protected]
Publicity - Justin McNaughton
Social - Ryan [email protected]
Claudia [email protected]
YLD/TNVLA - Tyler Middleton
Carbolic Smoke BallRobb [email protected]
Colleen [email protected]
Mock Trial - Kimberly Silvus
Brian [email protected]
Homeless - Mike [email protected]
Joel [email protected]
Community OutreachMatt [email protected]
Chris [email protected]
Race Judicata - Will [email protected]
Becca [email protected]
Law Week – Jeff [email protected]
Allyn Rubright [email protected]
NBA/YLD BOARD DIRECTORY 2009-2010“Service to the Community, Service to the Profession”
TLAPAre you feeling a little sad or “off” your game? Do you know a Lawyer who is feeling depressed?
Call the Tennessee Lawyers Assistance Program and they will help your or your Lawyer Friend in any way they can.
Call the number below for help in dealing with a range of health and personal issues.
(615) 741-3238
Got a News StoryGot a News Story……
Upcoming EventUpcoming Event……
Give us a shout!Give us a shout!
Send an Email to:
Justin [email protected]
Feb 19-20: Mock Trial
Feb 27: Race Judicata
