On Point

Two recent Q&A interviews in Law360 with leading white-collar practitioners caught my eye.

George Terwilliger (here) is a partner in the Washington D.C. office of White & Case and global head of the firm's White Collar Practice Group. Terwilliger is a former U.S. Attorney, Deputy Attorney General and Acting Attorney General.

In a recent interview with Law360, Terwilliger was asked "what aspects of law in your practice area are in need of reform, and why?"

Terwilliger responsed as follows: "I represent many companies who get caught up in the ever-widening net of federal criminal offenses arising from ordinary business activity that runs afoul of government regulatory requirements or dictates. In many such cases, and as in most cases, there is room for reasonable disagreement on the application of relevant legal standards to the salient facts. But because of the collateral consequences of drawn-out investigations and/or of conviction after trial, few if any companies have the opportunity to adjudicate such reasonable disputes before a judge or jury. Consequently, prosecutors, who are entirely appropriately zealous advocates for their side of the case, also become judge and jury in determining an appropriate resolution of the matter. In a system where rule of law is determined by adversarial process, this state of affairs results in an imbalance that is not healthy for the cause of justice."

Stephen Jonas (here) is a partner in the Boston office of WilmerHale and chairman of the firm's Investigations and Criminal Litigation Practice Group. He is also a former state prosecutor.

In a recent interview with Law360, Jonas was similarly asked "what aspects of law in your practice are in need of reform, and why?"

Jonas responded, in pertinent part as follows. "One area greatly in need of reform, in my view, is the investigation of alleged health care fraud. This is an area in which the government regularly secures enormous settlements, starting in the tens of millions of dollars, and now exponentially expanding to the billions of dollars. Virtually every pharmaceutical company has now been subjected to one or more of these investigations and the results are predictable — enormous monetary contributions to the federal government. I find it hard to believe that wrongdoing is so rampant in this industry that every company has at least several hundred million dollars worth of it. The more likely answer is that these settlements often have far more to do with the leverage the government enjoys than the merits of what the company did or didn’t do. In order to stay in business, pharmaceutical and medical device companies must be able to sell products that can be paid for by Medicaid and Medicare. But a conviction for a health care offense would result in exclusion of the companies from federal health insurance and essentially a death sentence for their business. So they cannot afford to fight even the most debatable of charges. One of the results is that novel legal theories and sketchy evidence will never be tested in a court of law and negotiated settlements (under threat of exclusion) serve as “precedent” for the next case. That is a system badly in need of reform."

One statement is generic, the other relates to health fraud, but both are directly on point when it comes to Foreign Corrupt Practices Act enforcement. (See here for my recent Facade of FCPA Enforcement piece in which I make several similar arguments in terms of FCPA enforcement).

With the pharma industry sweep currently in full force, Jonas's comments, I suspect, will be even more "on point" in the coming months as numerous pharma and other health care related companies are expected to reach, what will no doubt be, multi-million FCPA settlements that will likely be resolved via resolution vehicles subject to little or no judicial scrutiny. The government will bring in millions, the news will dominate the headlines for a few days, and then the question will be asked - did the conduct at issue even violate the FCPA?

Richard Cassin at the FCPA Blog recently highlighted a "corporate investigations list" (see here). It listed 72 companies "known to be the subject of an ongoing and unresolved FCPA-related investigation."

Similar to Jonas, I find it hard to believe that wrongdoing is so rampant that seemingly every major company has at some time run become the subject of FCPA scrutiny or run afoul of the FCPA.

There is a much bigger picture relevant to this new era of FCPA enforcement and it is this new era that is in need of urgent reform.

My own two cents, which I will elaborate on in the future, is that the answer to the problem of enforcement agencies enforcing (in many cases) the FCPA contrary to the intent of Congress and based on dubious legal theories is largely not to amend the FCPA - this will solve very little. The more fundamental question remains - how to rein in the enforcement agencies and to force judicial scrutiny of FCPA enforcement actions?