The U.S. government relies upon whistleblowers to drive its recoveries under the False Claims Act. See our analysis here of how the Act’s qui tam provisions work, especially in healthcare, by Colin Jennings, Marisa Darden, and Ayako Hobbs.
False Claims Act Recoveries Back On The Rise
After a dip in the 2018 fiscal year, False Claims Act (FCA) settlements and judgments are back and climbing. The Department of Justice (DOJ) recently announced that it had obtained more than $3.05 billion from FCA settlements and judgments for the 2019 fiscal year. 2018 may have just been an aberration after the 2010s saw steady increases in FCA recoveries. This is particularly true because 633 new qui tam suits (12+ per week) were filed last year.
Recent South African Publication on Non-Profit Organizations and Financial Crimes
South Africa’s Financial Intelligence Centre (FIC) recently issued a public compliance communication on anti-money laundering and combating the financing of terrorism relating to non-profit organizations (NPOs). The publication aimed to create “awareness within the NPO sector around the vulnerabilities that NPOs face,” and sets out Financial Action Task Force (FATF) principles relating to NPOs.
Threat of Iranian Cyberattack Matters to Your Organization
The ongoing Iran-US tensions, and potential for retaliatory cyberattacks, alert each organization to prepare to defend against a cyberattack. Iran has a history of sophisticated cyberattacks in response to increased tensions. In a new client alert, our Data Privacy & Cybersecurity team recommends a thorough review of your people, facilities, networks, and data procedures in response to this increased threat environment.
Rare Due Process Reprieve for Company Penalized by OFAC for Violating Ukraine Sanctions
Following a ruling issued last week by a federal judge in Texas, ExxonMobil Corporation (“ExxonMobil”) will not have to pay a previously issued penalty for contracting with Russia’s state-owned PJSC Rosneft Oil Company (“Rosneft”), since it was not provided fair notice by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) that Rosneft’s President and Chairman, designated by OFAC in his individual capacity, would provide a prohibited service to ExxonMobil by executing contracts between the parties in his official capacity.
Mexico Issues New Asset Forfeiture Law and Creates Special Forfeiture Unit
On August 9, 2019, Mexican President Andrés Manuel López Obrador passed legislation that added corruption to the catalogue of criminal conduct subject to asset forfeiture proceedings. Mexico’s new Ley Nacional de Extinción de Dominio (Asset Forfeiture Law), in conjunction with harmonizing amendments to the Código Nacional de Procedimientos Penales (National Code of Civil Procedure), empowers the Mexican government to seize from corrupt private individuals and companies any assets acquired illicitly, used in furtherance of illicit activity, or in respect of which good title cannot be evidenced. Just recently, a Special Forfeiture Unit in the Fiscalía General de la República (the Attorney’s General Office) was established to investigate and bring asset forfeiture cases.
However, one aspect of the new law has been criticized heavily, including by former Mexico Attorney General Ignacio Morales Lechuga, and even has led to Amparo suits (Constitutional appeals) by aggrieved parties. Specifically, detractors believe the new law’s controversial application to asset forfeiture procedures initiated as of the effective date of the Law, being August 10, 2019, even where the relevant corrupt acts occurred prior to that date, contravenes the Constitución Política de los Estados Unidos Mexicanos (the Constitution of Mexico), which expressly forbids Mexican law from prejudicing persons retroactively.
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Is Your Data Breach Report Protected?
Responding effectively to a data breach requires an organization to obtain a thorough forensic report about what happened and why. Yet this report can damage the company further if it becomes public inadvertently. Members of our cross-practice data protection team discuss how to protect a forensic report under privilege. The insights of Leah Parsons, Ericka Johnson, and Colin Jennings can be found here. A related article on cyber and data breach preparedness and response can be found here.
Inspector General Supports Whistleblowers
In his semi-annual report to Congress, Michael K. Atkinson, the intelligence community’s inspector general, expressed “hope that recent events will not have a chilling effect on the willingness of individuals within the Intelligence Community to continue to shed light on suspected fraud, waste, abuse, or malfeasance in an authorized manner.”
In an article published in Corporate Counsel November 27, Kristina Arianina explains the significance of whistleblower protections in any effective compliance function and discusses the effect the Ukraine whistleblower coverage may have on potential workplace whistleblowers. To minimize any potential chilling effect of this coverage, Kristina encourages companies to reaffirm their appreciation for whistleblowers and commitment to non-retaliation against bona fide employee complaints.
How to Survive a Congressional Investigation
Learn from the experts how you and your organization can navigate a congressional investigation from start to finish. Our webinar on Wednesday, December 18, will help you understand the basics of a congressional investigation and what is required to avoid irreparable harm to business or reputation.
Margaret Daum, partner and former Staff Director at the US Senate Committee on Homeland Security and Government Affairs and its powerful Permanent Subcommittee on Investigations, will lead the webinar. Joining Margaret will be Donald Sherman, the Deputy Director at Citizens for Responsibility and Ethics in Washington (CREW).
Register here. Attendees will have the opportunity to ask questions during the program, with a full Q&A session to follow.
Congress Seeks Reform of Red Notice Abuse
A Red Notice allows for detention of an international fugitive. But the practice has been criticized for abuse. In response, a bipartisan group of Congresspersons have introduced the Transnational Repression Accountability and Prevention Act (“the TRAP Act”). This reform legislation, if enacted, will affect politically-motivated Red Notices and enforcement of them around the world.
