White Collar Defense of Management and Employees
The Yates Memo has changed everything. This is important to you. If you found this site and landed on this page chances are high that you (1) are either management (director, officer or other high level employee) or a regular employee that has been notified that he or she will be interviewed in connection with an internal investigation conducted by an outside law firm or (2) have been contacted by a regulatory body to participate in some type of enforcement action.
On September 9, 2015, Sally Yates, the Deputy Attorney General for the United States Department of Justice set forth a multi-page memorandum to all United States Attorneys that completely changed the landscape with respect to how the Justice Department will treat corporations under investigation going forward. Now if a company wants to receive any “cooperation credit”, it must disclose all relevant facts and actors. Recognizing that corporations can only act through individuals, the Justice Department has placed special emphasis on going after individuals. For a more detailed analysis of the Yates Memo, please click here and you will be redirected to our Firm Blog on this point.
If you find yourself responding to an interview request, ask to have your own lawyer present. Don’t be shy- you want and need someone who is on your side. Under the Yates Memo the Company is looking to find a scapegoat. Don’t let this be you. In all probability, the results of the interview will be “shared” with an investigating governmental agency and you want to be able to clearly articulate what you said from your point of view and not just what the Company attorneys wrote. Click here for a blog entry on Why an Employee Needs Their Own Lawyer in a Company Investigation.
The lawyers at Danziger Shapiro, P.C. focus on fiercely protecting your interests whether by mounting an aggressive all-out attack against asserted claims or merely insuring that your words are not being paraphrased and used against you. Call us to set up a meeting at a mutually convenient time to discuss your concerns.
Representative Cases
- Department of Justice Bribery Investigation. We represented a business with international ties in a federal investigation into alleged wrongful acts of politicians relating to the awarding of business contracts. Throughout the investigation we successfully navigated client through landmines and kept client from being elevated from “subject” status of grand jury subpoena to a “target” of the joint DOJ, FBI, and Postal Inspector investigations.
- SEC Collection and Receiver Proceeding. We represented an attorney accused of participating in a fraudulent investment scheme. Through confidential hearings and negotiations with the court appointed receiver in a $16,000,000 case we were able to save the client’s home, law license and resolve the matter for less than nuisance value. We also successfully kept the press from reporting on our client despite widespread coverage of the case.
- SEC Enforcement Action. We represented a defendant accused of orchestrating a $14,000,000 international Ponzi scheme. We successfully modified an initial asset freeze order to allow our client to utilize his funds while we delayed judgment over a period of four years from filing. This extended timeframe allowed co-counsel to negotiate favorable terms in the related criminal investigation.
- Securities Fraud. We represented an individual accused of securities fraud by an American investor in excess of several million dollars alleged to have taken place in China, Pakistan, and Dubai. In taking the case to trial in federal court, we secured a total verdict in favor of our client. The critical decision made at trial not to place defendant on stand proved successful and our client was saved from parallel criminal proceedings.
- FINRA Enforcement Action. We represented an elderly investor before FINRA in a case against a well-known financial investment firm. By pursuing an aggressive litigation strategy we forced the investment firm to advance the costs for mediation (typically costs are shared) and resolved the case in less than a year with our client receiving a six figure settlement.
- Mortgage Fraud. We represented a business owner in the mortgage and title industries accused of orchestrating a $12,000,000+ mortgage fraud scheme in a New Jersey civil action. Through a combination of information releases and a coordinated media strategy we were able to prevent our client from being indicted on federal criminal charges while simultaneously negotiating for the distribution of frozen assets to the client’s family members.
- Business Fraud. We represented an equal shareholder in a freeze-out action resulting in a “business divorce”. At the end of a trial in Philadelphia’s Commerce Court, we obtained a judgment allowing our clients to purchase the business at a Court conducted auction. This case involved the interplay of not only state and federal cyber laws but also resulted in multiple on site interactions with Philadelphia police.
A few of the key acts that management and employees need to be aware of even if not trained by their supervisors are:
- Foreign Corrupt Practices Act – This law has two components that focus on anti-bribery and accounting. The FCPA affects every US company that does business outside the United States. In short, it is a crime for any US individual, business entity or employee of a business entity to offer or provide, directly or through a third party, anything of value to a foreign government official with corrupt intent to influence an award or the continuation of business. Most US companies get into trouble when they hire third party brokers or “intermediaries” in the foreign land where they are doing business but did not properly investigate the third parties “methods”. The burden of proof under the FCPA is a mere preponderance of the evidence (lowest burden of proof possible) so when you consider how high the potential penalties are, you better retain counsel that understands the ins and outs of the FCPA. The accounting provision of the FCPA makes it illegal for a company that reports to the SEC to have false or inaccurate books or records or fails to maintain a system of internal accounting control methods.
- False Claims Act – The primary tool used by the Department of Justice to go after companies and individuals who defraud (steal) from the government. If you are a federal contractor or receive federal funding, for example, you have exposure under the FCA. The consequences for violating this Act are enormous and include monetary fines and penalties and criminal prosecution. Many states also have their own version of a False Claims Act.
- Computer Fraud and Abuse Act – Also known as the federal “anti-hacking” statute that prohibits unauthorized access to computers and networks. This statute was poorly written and has come under increasing criticism for the way in which prosecutors have been using it in ever increasing creative ways that in our humble view, do not fall under the rubric of a “computer crime”.