Supreme Court Revives False Claims Act Suit by Applying “Government Knowledge” Statute of Limitations

The Supreme Court, in a unanimous decision authored by Justice Thomas, agreed with the Eleventh Circuit that the False Claims Act’s “government knowledge” statute of limitations applies regardless of whether the government chooses to intervene in a qui tam suit.

Under the False Claims Act, a civil action must be filed by the later of 1) six years after the statutory violation, or  2) three years after the relevant facts are “known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.”  The Act also bars all claims brought more than ten years after the violation. … More

Court Warns Government Agencies Against Directing Internal Company Investigations

The U.S. District Court for the Southern District of New York recently criticized government agencies for outsourcing their investigation to the target company, Deutsche Bank, and its counsel, Paul Weiss, to such a degree that the court treated statements that an employee made to internal investigators as the product of government interrogation.  United States v. Connolly, No. 16 Cr. 0370 (CM), 2019 U.S. Dist.… More

Trends in Securities Enforcement Discussed at BBA’s White Collar Conference

We have been writing about white-collar enforcement trends discussed at the Boston Bar Association’s recent White Collar Crime Conference (see here and here). Today we look at one area that was the subject of much discussion at the conference: securities enforcement.

Paul Levenson, Director of the Boston Regional Office of the U.S. Securities and Exchange Commission (SEC), said that the SEC is looking closely at microcap fraud,… More

Two More Pharma Companies Resolve Co-Pay Foundation Kickback Claims – Prosecutors Continue Pursuit of Similar Cases

Federal and state prosecutors recently convened at the Boston Bar Association’s White Collar Crime Conference to discuss, among other topics, health care enforcement priorities. At the conference, the U.S. Attorney’s Office for the District of Massachusetts (USAO) highlighted its recent focus on pharmaceutical companies that make donations to co-pay assistance foundations, an area where we have recently seen a flurry of False Claims Act (FCA) enforcement.… More

Minimizing Risk and Liability from Man in the Middle Attacks (or, How to Keep Your Company’s Wire Transfers from Going Awry)

Imagine this scenario:  you’ve had a productive and mutually advantageous ongoing contractual relationship of several years with another party.  You have built up quite a bit of trust over the years, and communicate regularly over email.  Your email communications include you receiving invoices and then confirming payment; your email messages might include a note about an upcoming shipment or provision of services, or even a note wishing the family well.… More

Government Attorneys Discuss Health Care Enforcement Priorities at BBA White Collar Crime Conference

Opioids, off-label marketing, and the home health industry will remain priorities for federal and state attorneys enforcing health care laws, according to comments made at the Boston Bar Association’s (BBA) White Collar Crime Conference.

The conference, held in Boston on April 22, featured speakers from the civil and criminal divisions of Boston’s U.S. Attorney’s Office and from the Massachusetts Attorney General’s Office.

Civil enforcement by the U.S.… More

Supreme Court Extends Securities Fraud Liability to Knowing Dissemination of False Statements Made By Others

Recently, in Lorenzo v. Securities and Exchange Commission, No. 17-1077, the Supreme Court held that an investment banker had committed securities fraud by copying and pasting false statements prepared by his supervisor into emails to prospective investors, even though he was not on the hook for making the statements himself.

The decision focuses on Rule 10b-5 of the Securities and Exchange Commission,… More

Welcome to the Foley Hoag White Collar Law & Investigations Blog!

We hope this blog serves as a forum for spirited debate, challenge, and comment.  The attorneys in our White Collar Crime and Government Investigations practice group have a wide array of diverse experiences that we hope to share with you here.  While we are white-collar defense lawyers, many among us are former federal and state prosecutors, and we appreciate the demands of justice even as we provide our clients a vigorous legal defense. 

The topics we’ll cover are often directly implicated in our practice, others less so.  We would welcome a range of voices on all of these issues, as we believe the topics are best illuminated by a broad array of contributions. 

We plan to cover the full gamut of white collar and government investigations related issues, including the False Claims Act, FCPA and related anti-bribery and corruption issues, insider trading and SEC enforcement, as well as compliance-related topics. So, however you’ve arrived here, welcome, and we hope this is the start of a long and fruitful conversation.

Lessons from a Recent (and Rare) DOJ FCA Lawsuit Against a Private Equity Firm and Its Portfolio Pharmacy Company

Recently, a Florida federal judge dismissed the Department of Justice’s (DOJ) False Claims Act (FCA) allegations against a compounding drug pharmacy and the pharmacy’s private equity (PE) owner.  For two reasons, the case may be illustrative of the DOJ’s increasingly aggressive pursuit of what it perceives as fraud within the healthcare industry.

First, it is noteworthy that DOJ suffered a dismissal of its FCA claims. … More

Two Recent Insider Trading Cases Shed Light on 2017 Martoma Decision

The Second Circuit recently decided a pair of insider trading cases that provide additional guidance on the law following the court’s 2017 decision in Martoma.  In United States v. Klein, 2019 U.S. App. LEXIS 858 (2d Cir. Jan. 10, 2019), the Second Circuit upheld Defendant Schulman’s insider trading conviction. Schulman, the “tipper,” did not directly trade on material, non-public information, but rather shared it with Klein,… More