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White Collar Defense

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Arnold & Porter Kaye Scholer's experienced White Collar Defense practice represents individuals, leading public and private corporations, both US and international, in all areas of white collar defense work, including internal investigations; government investigations, enforcement actions (e.g., grand jury investigations, federal agency enforcement (SEC, FDA, DOJ, etc.) and related litigation (e.g., qui tam litigation under the False Claims Act)); congressional investigations; crisis management; corporate governance; compliance counseling; trial; and appeal. We have substantial experience with both civil and criminal proceedings. In representing clients in connection with white collar investigation and litigation matters, our firm draws upon its own substantial civil litigation and regulatory counseling experience, including the prior government experience of many of our attorneys.

Businesses and individuals both in the US and throughout the world face increasingly aggressive government enforcement efforts. Matters formerly handled through civil or regulatory processes now often result in criminal investigations. Our firm brings unique strengths to the representation of corporations and individuals who face criminal, congressional or other enforcement proceedings. Our London and US offices include attorneys with extensive criminal law experience, as prosecutors, barristers, and defense lawyers. They include former officials of the US Department of Justice, UK Serious Fraud Office, and enforcement chiefs at a variety of regulatory agencies. Our defense group includes experienced former Assistant US Attorneys from the Southern and Eastern Districts of New York, the District of Columbia, the Eastern District of Virginia, the Southern District of Florida, and the Eastern and Northern Districts of California. Collectively, our attorneys have successfully tried hundreds of jury and bench trials—and favorably settled many more. Our colleagues rely on high levels of integrity and credibility in advocating for clients with government officials from multiple and varied federal and state offices. We understand that the best result for the client is to avoid any prosecution, and we draw upon our significant experience to help our clients navigate the difficult process of investigation. And our extensive experience with compliance programs helps us advise our clients on best practices to prevent criminal problems from developing or to mitigate them if an issue or inquiry does arise. But if clients face criminal charges, we have the extensive trial and appellate experience to mount a vigorous defense on their behalf.

Government investigations often involve parallel criminal and civil proceedings, complex e-discovery and data privacy issues, cross-border coordination among countries and their law enforcement agencies, and an increasingly aggressive array of inspectors general (IGS) and suspension and debarment officials. The resulting legal complexities require thoughtful and careful strategy, communication and coordination at every stage of the defense effort. Our matters range from healthcare, securities, government contracts, tax and bank fraud to leaks of classified information; from antitrust/cartel to environmental law; from anti-corruption inquiries under the Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act to federal and state False Claims Act/qui tam investigations and litigation; export control matters involving The Office of Foreign Assets Control (OFAC), International Traffic in Arms Regulations (ITAR), Committee on Foreign Investment in the US (CFIUS), and the Bureau of Industry & Security (BIS); from nuclear regulatory, national security and election law violations to defense procurement and other federal agency fraud.

Experience:

  • Lead trial and defense teams in complex parallel criminal and civil investigations. Public cases include corporate defenses of Oracle Corp. (U.S. ex rel. Paul Frascella v. Oracle Corp. 1:07cv529) (E.D.Va.) (Brinkema, J., Jones, J.) and Par Pharmaceutical Companies (D.N.J.-2:13-mj-08080-MCA-1) (D.D.C.-1:11-cv-1820-RWR) (3rd Cir.-11-2679), and individual defenses of executives and managers in public investigations involving Computer Sciences Corporation (CSC), KPMG, Hitachi Automotive, NGK Ltd., Lufthansa/BizJet, Chi Mei Opto Electronics, Synthes, Guidant, Biomet, Purdue Pharma, Embraer, and Teva.
  • Numerous pharmaceutical companies in federal and state criminal and civil government investigations and internal investigations involving allegations of off-label promotion, anti-kickback statute violations, False Claims Act violations and other issues related to sales, marketing and pricing practices.
  • Ambassador Robin Raphel, a career Foreign Service Officer and one of the US government's most senior advisers on Pakistan and South Asian issues, who, according to leaked press stories, was being investigated for unauthorized disclosures of classified information. The Justice Department closed its espionage investigation and filed no charges.
  • Leading Fortune 500 company in connection with an FCPA investigation involving the company's activities in over fifteen countries in Europe, the Middle East, Asia and Central America. The firm is handling ongoing cooperation with the DOJ, the SEC, the UK's Serious Fraud Office and the Austrian authorities.
  • Howard I. Smith, the former Chief Financial Officer of American International Group, Inc. (AIG) and current Vice Chairman of C. V. Starr & Co., Inc. (C. V. Starr) and C. V. Starr the entity, in several civil litigation matters arising out of the highly publicized alleged insurance industry-wide bid-rigging practice and undisclosed contingent commissions paid to insurance brokers and AIG's restatement of its financial statements, which implicated accounting and regulatory issues concerning finite reinsurance and general reinsurance transactions, various structured financial products and non-US financial vehicles.
  • Multinational financial services firms in connection with inquiries from the SEC, CFTC, DOJ, FINRA, SROs and other regulators.
  • Major pharmaceutical company as lead national counsel in an ongoing grand jury investigation by the Antitrust Division of the Department of Justice regarding allegations of industry-wide price fixing and market allocation conspiracies. The investigation is far-reaching and relates to most of the many products in the company's portfolio.
  • Criminal Adviser to the Management and Standards Committee at News Corporation in relation to the investigations involving voicemail interception and payments to public officials.
  • Former SunTrust Mortgage loan officer in criminal jury trial in Eastern District of Virginia for alleged mortgage wire fraud conspiracy. Appealed verdict to the Fourth Circuit, and won release pending appeal.
  • Major South African financial institution, AllPay, in connection with an investigation concerning a major South African government contract. Net 1, a US listed company, won the bid for the contract, but subsequent investigation suggested that Net 1 may have prevailed in the tender process through bribery. Working with South African counsel, assisted AllPay with the investigation, and with coordinating with the US Department of Justice and the Securities & Exchange Commission with their investigation of Net 1 for possible violations of the Foreign Corrupt Practice Act.
  • Fortune 100 company in prosecution arising out of a theft of the company's trade secrets. Worked closely with US Attorney's Office and FBI in investigation of former employee responsible for theft, leading to employee's conviction and payment of pay restitution to client for expenses incurred in investigation and prosecution.
  • R v. BAE Systems Plc. in connection with the prosecution of a global defense company, fully managed successful outcome of Judicial Review challenging the lawfulness of the plea agreement, and was responsible for managing counsel, drafting response to the claim, and handling correspondence amidst intense media scrutiny.
  • Advised and prosecuted in relation to a number of large tax evasion cases involving complex overseas enquiries, analysis of large volumes of data, and knowledge of the law of restraint and confiscation. R v. Gray (2006).
  • Advised and prosecuted in case which became a model for HMRC best practice, identifying evidence that permitted the first successful UK inheritance tax case which enabled the Scottish National Gallery to recover a valuable art collection.
  • Advised and successfully prosecuted a multihanded conspiracy to defraud in relation to a charity which had high-profile patrons.
  • Senior State Department official in white collar criminal case. The US Attorney's Office for the Eastern District of Virginia unsuccessfully tried to show that client was involved in espionage; he pled guilty to false statement and removal of classified document charges.
  • WorldCom CFO in his criminal case in the Southern District of New York. Client received a five-year sentence, the lowest sentence of high-ranking WorldCom officials.
  • Represented the White House Counsel in the Whitewater investigation.
  • Won dismissal in US District Court for Eastern District of Virginia (Ellis, J.) for one of the two defendants in the so-called "AIPAC Espionage Act case". (U.S. v. Steven Rosen and Keith Weissman, Case No. 1:05cr225). The Fourth Circuit (557 F.3d 192) issued a landmark ruling in favor of the two former AIPAC foreign policy advocates on both CIPA issues and evidentiary standards under the Espionage Act for conduct covered by the First Amendment, and DOJ followed within months by dismissing the 10-year investigation and prosecution on eve of trial.
  • Major luxury goods retailer in connection with embezzlement of millions of dollars in merchandise by former executive. Coordinated with law enforcement in investigation and prosecution, leading to arrest of former employee, followed by guilty plea and agreement to pay restitution to client.
  • Large aerostructures manufacturer, and its board of directors and officers, in shareholder litigation and a government inquiry arising out of the company's public announcement of US$590 million in forward loss charges related to new aircraft development programs.
  • Professional athletic association in connection with multiple US Department of Justice (DOJ) investigations concerning allegations that tennis players have participated in corrupt match-fixing schemes across the globe.

Experience

Novartis and Novartis Pharmaceuticals Corporation False Claims Act litigation
Secured the US Court of Appeals for the First Circuit's affirmation of the dismissal of a qui tam lawsuit filed by multiple relators under the False Claims Act alleging off-label and kickback claims in connection with the asthma drug Xolair®.
Novartis and Novartis Pharmaceuticals Corporation False Claims Act litigation
Obtained a dismissal with prejudice of a qui tam suit brought against the clients  in the US District Court for the District of Massachusetts by multiple relators under the False Claims Act that alleged off-label and kickback claims in connection with the asthma drug, Xolair®.
Two Japanese executives of a maritime shipping company Car Carriers Criminal Cartel Investigation
Defending the clients in an antitrust criminal investigation of the international car shipping industry.

Perspectives

Lit Alerts—November 2017
A Publication of the Litigation Practice Group
Lit Alerts—October 2017
A Publication of the Litigation Practice Group
Lit Alerts—September 2017
A Publication of the Litigation Practice Group
Deskbook on Internal Investigations, Corporate Compliance and White Collar Issues (2nd Edition)
PLI Practising Law Institute
United States v. Martoma: The Second Circuit's Latest Attempt to Clarify the "Personal Benefit" Requirement in Insider Trading Cases
Advisory
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Recognition

Chambers Global
Fraud & Corporate Investigations (Latin America-wide) (2015-2017)
Corporate Crime & Investigations (US) (2016-2017)
Chambers USA
Litigation: White-Collar Crime & Government Investigations (DC) (2014-2016)
Corporate Crime & Investigations (2015-2016)
Chambers Latin America
Fraud & Corporate Investigations (2015-2018)
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Overview

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