Government Investigations and White Collar

Congressional Investigations

It has become commonplace to see corporate executives called before Congress for testimony, broadcast on television and splashed across the headlines. Congress’s oversight of the private sector has been increasingly aggressive, including even the use of criminal contempt proceedings to attempt to force corporate witnesses to appear.

Congressional investigations present unique challenges outside the experience of most commercial litigators; corporations need experienced counsel who are deeply familiar with the congressional investigation processes and the Capitol Hill staff who conduct them, including knowing how to manage responses to document requests and/or subpoenas, provide testimony before the House or Senate, and effectively deal with public scrutiny and media attention, if not an outright media crisis.

Shook attorneys have the key experience to effectively handle Congressional investigations, from responding to subpoenas and negotiating document production terms to preparing witnesses for interviews and hearings, managing public relations, and mitigating collateral consequences.

Former federal and state prosecutors, representatives of federal agencies, and the most senior leader of the U.S. Judge Advocate General’s Corps, they have the connections and experience to engage quickly and manage investigations to a satisfactory conclusion. Collectively, Shook attorneys have responded to what is likely hundreds of Congressional investigations, inquiries, and interactions over the course of their careers in public and private practice.

Inspector General Investigations

State and federal agencies have inspector generals, whose responsibility is to uncover fraud, waste, abuse, and mismanagement in the government and to investigate and respond to allegations of wrongdoing, abuse, malfeasance, nonfeasance, breaches of fiduciary duties, and the like. Notable examples include the Department of Defense, Department of Justice, the Department of Health and Human Services, and the Department of the Treasury. Although these inspector generals are limited to investigating their own agencies, they still possess enormous powers and are relied upon by Congress to be independent and conduct thorough and fact-based investigations. As such, inspector generals have the power to investigate private parties who, for instance, receive a government contract or grant from that agency. This can lead to information requests, subpoenas, and witness interviews. When faced with an inspector general inquiry, companies need experienced support to navigate what can be a complicated and potentially perilous process that can result in a government employee’s dismissal, the loss of pension and benefits, or even criminal referral to the Department of Justice.

Shook attorneys have extensive experience with inspector general investigations, from both their experience in government service and the representation of private parties. Drawing on this experience they can efficiently and effectively interface with inspector generals, respond to subpoenas and negotiate the scope of document productions, and prepare witnesses for interviews in pursuit of an amicable resolution that avoids loss of wages, pensions, benefits, or job termination.

State Attorney General Inquiries

State Attorney Generals, on both sides of the political aisle, regularly send Civil Investigative Demands (CIDs) to a variety of businesses. Similar to inquiries by federal authorities, these investigations can lead to substantial document production obligations and requests for witness interviews from all levels of a company, in addition to potential civil or even criminal liability. But each state has its own enforcement priorities, internal structure and procedures, and approach to investigations. Finding counsel with the appropriate understanding of the relevant state attorney general’s inner workings and likely tactics is crucial for companies facing this kind of scrutiny.

In addition to its deep bench of attorneys with federal enforcement experience, Shook is proud to count several representatives of state attorney generals’ offices among its partners. This includes Bill Corrigan, the former Deputy Attorney General of the State of Missouri. These seasoned professionals have the experience and instincts to proactively respond to inquiries from state attorney generals all over the country and they bring a reservoir of good will and credibility having handled such matters themselves while in state public service.

Monitorships

When settling a corporate matter they have investigated, federal or state regulators or the court entering the order, may appoint an independent monitor to ensure the corporate entity is complying with the terms of the settlement or resolution agreement. In such circumstances, it is important that the chosen monitor have proven integrity, unimpeachable judgment, the respect of their colleagues and the bar, impeccable legal skills, and experience relevant to both the misconduct in question and ideally, the particular industry involved. Monitorships can be highly specialized and require repeated, diligent testing over time of the monitored company’s compliance with its agreement with the authorities. 

Shook attorneys understand that monitors must scrupulously remain independent. Having both litigated vigorously against and—when called for—cooperated with the most prominent state and federal regulators, Shook attorneys' independence is clear. At the same time, monitors must have a deep understanding of the monitored entity’s business and the need for practical, sustainable reforms. In this tradition, monitors need also to have the ability to recognize that their role is to ensure compliance—not micromanage companies or their boards or executives.  And, when a company has reached the point of no longer needing monitoring, a good, strong monitor must be able to recognize that achievement and have the character to recommend the early closure of the monitorship.

With a deep bench of former federal and state prosecutors, representatives of federal agencies, and leaders of the U.S. Judge Advocate General’s Corps, Shook has attorneys have been active in the monitorship space for decades.  They have the necessary experience and qualifications to serve as monitors in a variety of industries and areas of misconduct. These attorneys have served as legal counsel to monitors and also regularly advised clients anticipating or dealing with the imposition of a monitor. They have written about the monitorship process, held senior leadership positions in monitorship organizations, helped write the code of conduct for outside monitors, and taught legal courses addressing the monitorship experience.

Customs and Trade Fraud

The federal government is intensely focused on fair trade, the stopping of foreign countries from “dumping” goods into the United States market at artificially low prices, and reducing the United States’s trade deficit by imposing increased tariffs on imports. In addition, it has identified antidumping and countervailing duties as an area especially prone to fraud, abuse, and criminal conduct, such as transshipment and mis-declaration schemes. And federal statutes give prosecutors the power to seek criminal, and not just civil, penalties against anyone (whether a company, executive, or individual) along the supply chain knowingly involved in importing goods “contrary to law” or anyone who receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of goods after importation, knowing those goods entered the country contrary to law. In an environment where we predict an increased focus on the enforcement of our nation’s trade laws, multinational corporations will undoubtedly need help identifying the potential legal exposure from the goods they import and responding to civil and criminal investigations and inquiries related to those goods.

The co-chair of Shook’s Government Investigations & White Collar Practice, Andrew S. Boutros, has been a leader in global trade issues for more than a decade, first as a federal prosecutor and then in private practice. Among other things, Andrew successfully prosecuted the most extensive international criminal trade, customs and antidumping fraud cases of their kind, which Bloomberg Businessweek described as “the largest food fraud in U.S. history.” For his accomplishments on behalf of the public, the Department of Homeland Security (HSI) and Customs and Border Protection (CBP) have awarded Andrew some of their highest agency awards. 

Andrew and Shook colleagues have also advised companies on their supply chain risks, including slave and child labor in their supply chains; litigated tariff issues before the Court of International Trade; and responded to trade-related government inquiries on behalf of corporations and individuals. In addition, Shook attorneys have been thought leaders in this area, publishing multiple articles and book chapters on the federal government’s evolving customs and trade priorities.  They have also presented on the subject, including to senior leadership at the Department of Commerce, and lectured and taught on the subject, including to law enforcement personal across the country as well as law students.

Crisis Management

Shook attorneys are adept at preventing legal issues from becoming crises. That skillset is more important than ever because in a complex legal landscape, where multiple regulators, enforcers, politicians, private plaintiffs, journalists, and even social media figures can suddenly turn a legal matter into a public relations issue, crises are bound to happen. Against this very real landscape, Shook attorneys have the experience and training to help defuse a crisis, ranging for example, from a product recall to a high-profile employment dispute to a vocal public whistleblower. The firm’s attorneys can spring into action to devise a cohesive strategy that presents a coordinated response on multiple fronts to work to control the narrative before outside actors can make it their own.

Decades of high stakes litigation have trained Shook’s attorneys to convey complex factual scenarios in understandable, relatable terms, both inside and outside the courtroom. They have extensive experience and connections in public relations and media, whether print, television, social media, or otherwise. The firm’s mix of well-known former federal and state prosecutors, military officials, regulators, and other government personnel ensures that litigation know-how is paired with seasoned guidance on potential criminal, regulatory, legislative, and reputational implications.

Shook attorneys also have the range of experiences to provide seamless multidisciplinary solutions when crises loom. Beyond civil and criminal litigation, Shook advises on the privacy and cybersecurity, securities, corporate governance, environmental, accounting, and employment aspects of nearly any given legal situation. When a crisis strikes (or ideally, even before it can) the Shook team is already proactively planning a strategy and is prepared to bring a crisis to a satisfactory resolution.

Representative Experience

When the U.S. Department of Justice and other regulatory agencies initiate investigations or enforcement actions, they often involve other parallel state and federal proceedings, internal investigations, third-party litigation, and highly publicized allegations, if not speculation. To meet these challenges, and to deliver results when our clients need them the most, Shook employs a comprehensive cross-disciplinary approach, combining defense expertise with investigative knowhow, as well as effective compliance counseling, a robust discovery strategy, and an advanced public relations plan.

Boards, audit and special committees, and company executives turn to us for advice on preventive measures, risk-based assessments, corporate governance, and transactional risks, all with an eye to help minimize the likelihood of expensive and potentially damaging investigations and litigation as well as government intervention. When investigations happen or enforcement proceedings and litigation are threatened, Shook attorneys work tirelessly and creatively to resolve criminal and regulatory matters at the pre-charge stage, which is frequently the objective of our clients—especially our corporate ones. But when it becomes unavoidable that a judge or jury must decide legal or factual issues in dispute, Shook’s trial prowess allows it to win in the courtroom, as our extensive trial record amply demonstrates.

In addition, 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 undertaking, facilitates the protection of company information, empowers executives and employees to invoke their rights, and provides assurances 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.

• Represented financial services provider in a Federal Trade Commission lawsuit that alleged violations of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act arising out of the sale of online discount clubs.
• Retained a by pharmaceutical manufacturer to assume responsibility for response to an ongoing criminal and civil investigation by the Department of Justice concerning alleged underpayments of Medicaid rebates. Shook’s responsibilities included negotiating the scope of several subpoenas with the DOJ, producing documents and information in response to those negotiated subpoenas, preparing and producing current and former employees for both DOJ interviews and grand jury testimony, presenting internal investigation findings to the DOJ, and securing successful pre-complaint resolution of the matter.
• Represented a pharmaceutical company in a DOJ Civil Division investigation that was the outgrowth of a civil case filed in the U.S. District Court for the District of New Jersey, which alleged that the company caused false claims for provider reimbursement to be submitted to state and federal health care programs. The DOJ investigation sought information regarding company practices regarding the payment of speaker’s honoraria to individuals for speaking engagements, when such individuals may also be prescribing physicians. Shook’s responsibilities again included negotiating scope of the subpoena with the DOJ, producing documents and information in response to the negotiated subpoena, and responding to follow-up inquiries from the DOJ. The DOJ ultimately took no action.
• Retained by a pharmaceutical manufacturer to respond to an investigative subpoena served by the California Department of Insurance seeking the production of records dating back decades regarding a specific drug. The subpoena appeared to emanate from a whistleblower’s assertion of violations of the California False Claims Act, with the subpoena then being a function of the state conducting an investigation to determine whether to intervene in the FCA action. Shook represented the client in negotiating a reduced scope of the subpoena, collecting and producing documents, and ultimately preparing and presenting to counsel representing the California Department of Insurance. The state took no further action following the presentation.
• Represented a health information, technology and clinical research organization in criminal and civil investigations by DOJ. After negotiation and presentation to the government of written and document discovery responses, the matter resulted in a “no action” resolution with the government.
• Represented a pharmaceutical company in connection with an investigation by DOJ regarding alleged improper drug promotions and physician remuneration.
• Represented a pharmaceutical company in FTC suit for allegedly abusing the FDA citizen petition process through sham petitioning.
• Represented a food import company in DOJ/NOAA investigation regarding potential violations of Endangered Species Act; Illegal, Unreported, and Unregulated Fishing Enforcement Act; and Food and Drug Act involving importation and labeling of products.
• Produced and defended company witnesses for pharmaceutical manufacturers when questioned by AUSA on the issue of alleged off-label promotion.
• Represented a construction contractor in multiple DOT Office of Inspector General (OIG) enforcement actions, including taking an exclusive role in responding to investigative subpoenas, whether issued by DOT OIG itself, or on behalf of DOT OIG by federal enforcement agencies.