For insights into how Foreign Corrupt Practices Act (FCPA)
enforcement is creeping into the pharmaceutical and medical device
manufacturer arena, see this
article, which I co-authored with
Paul Pelletier, former principal deputy chief of the Criminal
Division's Fraud Section at the Department of Justice (DOJ). It
discusses how DOJ is now using "letters of inquiry" and
other informal practices to get pharmaceutical companies to report
their knowledge of their competitors' fraudulent activities to
the government as a condition of resolving an investigation.
On March 26th, a few days before the article published, another
device manufacturer, Biomet, Inc., announced that it entered into a new Deferred Prosecution Agreement (DPA) and
accompanying settlements with DOJ and the Securities and Exchange
Commission. Coupled with the DPAs DOJ entered into with Johnson & Johnson in April 2011 and Smith & Nephew in February 2012, this
announcement signals the fact that DOJ apparenlty is looking beyond
United States' boundaries for health care fraud enforcement
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Under what courts call the "crime-fraud exception" to the attorney-client privilege, the privilege does not protect communications between clients and their lawyers which further client wrongdoing. Courts agree that the exception applies to crimes and traditional common law intentional fraud.
Two days ago the United States Securities and Exchange Commission charged oil field services company Weatherford International with violating the Foreign Corrupt Practices Act by authorising bribes and improper travel and entertainment for foreign officials in the Middle East and Africa to win business including kickbacks in Iraq to obtain United Nations oil-for-food contracts.
The U.S. Court of Appeals for the District of Columbia perpetuated a circuit split in United States v. Glover in suppressing wiretap evidence. In Glover, the prosecutors obtained a wiretap order from a district judge in D.C. for a listening device on a truck in Maryland.
Regulators speaking at the American Conference Institute’s 30th International Conference on the Foreign Corrupt Practices Act tout large penalties, enhanced international cooperation, and a renewed focus on individual prosecutions.
On November 26, 2013, Weatherford International ("Weatherford" or "the Company"), an oil-field services company that trades on the New York Stock Exchange, agreed to pay $253 million in criminal and civil penalties as part of a global settlement with the U.S. government to resolve claims that the Company and its subsidiaries violated the Foreign Corrupt Practices Act ("FCPA") and various export control and sanctions laws.