A company can take preventative measures to shield itself from, or mitigate, criminal liability or civil fines or penalties. Wiley Rein is often retained by corporations, boards of directors, and audit committees to conduct internal investigations to identify potential or existing improprieties and to counsel clients regarding the correct course of action based on the results of such investigations.
For example, in the last few years, the White Collar Defense & Government Investigations Practice has:
- Conducted an internal investigation of a Fortune 500 company on behalf of the audit committee of the board of directors in response to shareholder allegations of accounting and other irregularities. The Team's efforts involved interviewing scores of employees for awareness and involvement of the alleged irregularities; collecting, searching, and reviewing hundreds of thousands of documents for exposure to liability; presenting findings to the audit committee; and making recommendations regarding internal controls and external disclosures.
- Led an internal investigation of a company in response to allegations of fraud. Our effort included interviewing the key individuals about their knowledge of the alleged incidents, collecting electronic data from servers located in multiple cities, performing keyword searches on the collected documents to refine the collected materials, reviewing thousands of emails, and producing a report to the board of directors summarizing our findings.
- Coordinated the response of a company to potential enforcement action from an agency regarding compliance of the company's products with agency regulations. The response included conducting an independent investigation into the actions and awareness of employees of the alleged noncompliance, which involved interviewing dozens of employees in multiple offices under a short turnaround time and producing a detailed report to the board of directors on our findings. We also coordinated the collection of electronic and hard-copy documents; searched and reviewed the materials for liability issues, responsiveness, and privilege; and produced responsive documents and a summary of our findings to the agency.
- Counseled contractors working with the U.S. military or foreign governments on several potential violations of the Foreign Corrupt Practices Act (FCPA) as well as potential criminal misconduct by employees stationed abroad.
While investigations can be effective at revealing the source of improprieties, development of compliance programs is often the most effective way to minimize the risk of future misconduct, particularly for companies subject to extensive regulation, such as government contractors, telecommunications firms, and food and drug companies. In addition, compliance programs are frequently beneficial in resolving government civil or criminal allegations of wrongdoing and can be critical to positive treatment under the Federal Organizational Sentencing Guidelines.
In recent years, Wiley Rein has designed and reviewed individually tailored compliance and training programs concerning the False Claims Act (FCA), export laws, the Sherman Antitrust Act, the Procurement Integrity Provisions of the Office of Federal Procurement Policy Act, the Anti-Kickback Act (AKA), the Drug-Free Workplace Act, the Truth in Negotiations Act, and election law issues.
One recent matter highlights how investigations and compliance reviews can work together. In response to a federal agency subpoena regarding gifts and meals provided to government officials by employees at a Fortune 100 company, we investigated the possibility of employee misconduct by interviewing employees about their practices and reviewing expense records and related documents. At the same time, our Team assessed the adequacy of the company's training and compliance policies. Our report to corporate counsel not only presented our factual findings but also recommended ways to improve the company's training and oversight of employees with respect to providing gifts to federal employees.
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By Roderick L. Thomas, Mark B. Sweet and Erin K. Nord
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View from Wiley Rein: Is It Possible to Comply with the FCPA’s Internal Controls Provision?
By Gregory M. Williams and Ralph J. Caccia
January 27, 2015 | Bloomberg BNA’s Federal Contracts Report
View from Wiley Rein: Keep Your “Small” Investigations from Becoming Big Problems
By Erin K. Nord and Craig Smith
November 25, 2014 | Bloomberg BNA’s Federal Contracts Report