Calling All Wrongdoers!

By: Douglas K. Rosenblum 

On Thursday, April 28, 2016 Assistant Attorney General Leslie Caldwell addressed the American Bar Association’s Institute on Internal Corporate Investigations regarding the Department of Justice’s Voluntary Disclosure Program.  In a room full of defense attorneys, this pilot program was surely received with some skepticism.  This new initiative is aimed to encourage corporate counsel to report potential wrongdoing under the Foreign Corrupt Practices Act.  The Department assumes that counsel will have conducted an internal investigation and implemented remedial procedures when it received notice of potential violations.  But instead of shelving the report of the investigation in the hopes that the government never finds out, the Voluntary Disclosure Program provides an incentive for prompt disclosure.

The prize for a company participating in this program could be fines cut in half from the lowest amount recommended by the federal sentencing guidelines, as well as a dispensation from hiring an expensive compliance monitor.  Assistant Attorney General Caldwell was clear to point out that reporting potential violations on the eve of a government investigation is not sufficient.  However, the government will not punish companies for failing to report potential violations that were unknown – for example, if a whistleblower reported directly to the government without notifying the company first.

The defense bar has been on guard following the so-called Yates Memo written by Deputy Attorney General Sally Quillian Yates directing the government’s civil and criminal attorneys to pursue individuals and discouraging corporate settlements in exchange for immunity for executives.  How does a company self-disclose and cooperate fully knowing the government would like to prosecute individual executives?  How is a company to cooperate while maintaining the sanctity of the attorney-client privilege?  Assistant Attorney General Caldwell acknowledged these issues during her remarks.  And although she was not in a position to propose specific solutions, Assistant Attorney General Caldwell credited the defense bar and its skilled attorneys with the capacity to structure cooperation in a way that does not waive the privilege.

Given the relatively recent publication of the Yates Memo and introduction of the Voluntary Disclosure Program, only time will tell how successful counsel will be in negotiating this new terrain.

More White Collar blogs can be found here.

News & Events

Related News

June 14, 2019

Pietragallo’s Doug Rosenblum rode his bicycle this weekend for the American Cancer Society’s Bike-A-Thon from Philadelphia to Atlantic City, New Jersey. Doug rode as a part of Team Jefferson Health. The American Cancer Society’s “Bike-A-Thon” is a fund-raising event featuring four start-points with six route options and each rider is encouraged to raise at least… Read more »

Read More
May 10, 2019

PITTSBURGH and PHILADELPHIA, PA (May 10, 2019) – Twenty Pietragallo Gordon Alfano Bosick & Raspanti, LLP attorneys were named to the 2019 Pennsylvania Super Lawyers and Rising Stars list, including founding partner William Pietragallo, II. These designations are awarded to lawyers who received the highest point totals in the Pennsylvania Super Lawyers2019 nomination, research, and review process, an honor reserved… Read more »

Read More

Upcoming Events

September 19, 2019

Joseph L. Gordon will be presenting on “OSHA’s Ten Most Common Violations – An Insider’s Perspective on Easy Solutions to Overlooked Hazards” at The Pennsylvania State Council of SHRM’s 2019 State Conference in State College, PA. Joe will be a co-presenter with Nicholas DeJesse, an Assistant Regional Administrator with OSHA.

Read More
September 19, 2019

Marc Stephen Raspanti will be speaking at a False Claims Act Enforcement Roundtable on September 19, 2019 from 4:00-6:30pm in Miami, Florida. This event is being co-hosted by Pietragallo, Morgan Lewis, the Women’s White Collar Defense Association, and the American Bar Association’s Qui Tam Subcommittee for a False Claims Act/Qui Tam Roundtable, “Florida Style.” The discussion… Read more »

Read More
View More News & Events