Financial Fraud Law Report

Transcription

1 Financial Fraud Law Report An A.S. Pratt & Sons Publication February 2013 Headnote: Guidance Steven A. Meyerowitz The FCPA Guidance Road Map Mara V.J. Senn, Drew A. Harker, Arthur Luk, and Philippe A. Oudinot Anti-Corruption Enforcement in China Bruce E. Yannett, Sean Hecker, Paul R. Berger, Philip Rohlik, and Fengian Ao SEC Focuses on Fair Valuation in Recent Enforcement Cases Jane A. Kanter and Robert G. Zack Conducting an Effective FCPA Internal Investigation Zack Harmon and Laura Greig The Role of Financial Information in Fraud Investigations Colleen Vallen Domestic and Foreign Money Transmitters Face Complex Hazardous Web of Federal and State Laws and Regulations Jennifer R. Taylor and Emre N. Ilter Government s Burden in Insider Trading Cases Clarified Michael S. Schachter and Alison R. Levine Second Circuit Decision Clarifies the Standard for Claims of Aiding and Abetting Securities Fraud Michael S. Schachter Going it Alone: Recent Federal Court Decision Demonstrates Risks of Losing Privilege When Conducting Internal Investigations Without Counsel Nooree Lee and Samantha S. Lee Recent Federal False Claims Act Decision Undermines Attorney-Client Privilege over Certain In-House Counsel s Marvin G. Pickholz and Mary C. Pennisi U.K. Serious Fraud Office Issues New Bribery Act Policies Lord Goldsmith QC, Karolos Seeger, and Matthew H. Getz

2 Editor-in-chief Steven A. Meyerowitz President, Meyerowitz Communications Inc. Board of Editors Frank W. Abagnale Author, Lecturer, and Consultant Abagnale and Associates Stephen L. Ascher Jenner & Block LLP Thomas C. Bogle Dechert LLP David J. Cook Cook Collection Attorneys David A. Elliott Burr & Forman LLP William J. Kelleher III Robinson & Cole LLP James M. Keneally Kelley Drye & Warren LLP Richard H. Kravitz Founding Director Center for Socially Responsible Accounting Frank C. Razzano Pepper Hamilton LLP Sareena Malik Sawhney Director Marks Paneth & Shron LLP Mara V.J. Senn Arnold & Porter LLP John R. Snyder Bingham McCutchen LLP Jennifer Taylor McDermott Will & Emery LLP Bruce E. Yannett Debevoise & Plimpton LLP The Financial Fraud Law Report is published 10 times per year by A.S. Pratt & Sons, 805 Fifteenth Street, NW., Third Floor, Washington, DC , Copyright 2013 THOMPSON MEDIA GROUP LLC. All rights reserved. No part of this journal may be reproduced in any form by microfilm, xerography, or otherwise or incorporated into any information retrieval system without the written permission of the copyright owner. For permission to photocopy or use material electronically from the Financial Fraud Law Report, please access www. copyright.com or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For subscription information and customer service, call Direct any editorial inquires and send any material for publication to Steven A. Meyerowitz, Editor-in-Chief, Meyerowitz Communications Inc., PO Box 7080, Miller Place, NY 11764, [email protected], (phone) / (fax). Material for publication is welcomed articles, decisions, or other items of interest. This publication is designed to be accurate and authoritative, but neither the publisher nor the authors are rendering legal, accounting, or other professional services in this publication. If legal or other expert advice is desired, retain the services of an appropriate professional. The articles and columns reflect only the present considerations and views of the authors and do not necessarily reflect those of the firms or organizations with which they are affiliated, any of the former or present clients of the authors or their firms or organizations, or the editors or publisher. POSTMASTER: Send address changes to the Financial Fraud Law Report, A.S. Pratt & Sons, 805 Fifteenth Street, NW., Third Floor, Washington, DC ISSN

3 Recent Federal False Claims Act Decision Undermines Attorney-Client Privilege over Certain In-House Counsel s Marvin G. Pickholz and Mary C. Pennisi The authors discuss the decision in United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center that harmonizes with the European Court of Justice s decision in Akzo Nobel Chemicals Ltd. and Akcros Chemical Ltd. v. Commission of the European Communities, which similarly refused to apply attorney-client privilege to in-house counsel s in A federal magistrate judge s recent decision in United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, 1 a Civil False Claims Act ( FCA ) case pending in the United States District Court for the Middle District of Florida, calls into question the protection of in-house counsel s under the attorney-client privilege. As the court generally recognized, the advent of has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel. The court ultimately ordered Halifax Hospital to produce communications of its in-house counsel in an ongoing FCA suit against the hospital. Marvin G. Pickholz is a partner in Duane Morris securities and white-collar practice groups. His practice focuses on complex civil and criminal litigation including defense of corporations and individual clients, both domestic and foreign. Mary C. Pennisi is a litigation associate with the firm. The authors can be reached at [email protected] and [email protected], respectively. 184 Published by A.S. Pratt in the February 2013 issue of the Financial Fraud Law Report. Copyright 2013 THOMPSON MEDIA GROUP LLC

4 The Case False Claims Act Decision Undermines Attorney-Client privilege Employees of Halifax Hospital initiated the action, alleging that the hospital unlawfully compensated physicians in violation of the Stark Law and the Anti-Kickback Statute. The United States intervened and requested that the hospital produce documents concerning its statutory and regulatory compliance, including communications with the compliance, finance, and legal departments. The judge held that communications contained business advice instead of legal advice and thereby fell outside the purview of protected attorney-client communications. In evaluating whether the attorney-client privilege covered the subject communications, the court applied a different standard for communications with in-house counsel than it would typically apply to communications between a client and outside counsel. While [c]ommunication between corporate client and outside litigation counsel are cloaked with a presumption of privilege, the presumption does not arise with in-house counsels communications. The court noted that [m]odern corporate counsel have become involved in all facets of the enterprises for which they work[, and] [a]s a consequence, in-house legal counsel participates in and renders decisions about business, technical scientific, public relations, and advertising issues, as well as purely legal issues. Recognizing that in-house counsel often wears multiple hats and are involved in non-legal issues, the court concluded that the attorney-client privilege would not apply unless the subject communication was clearly and solely for the purpose of seeking or receiving legal advice, regardless of how the company categorized or used the information. The Halifax holding and analysis harmonizes with the European Court of Justice s decision in Akzo Nobel Chemicals Ltd. and Akcros Chemical Ltd. v. Commission of the European Communities, 2 which similarly refused to apply attorney-client privilege to in-house counsel s in The ECJ held that in-house counsel are employees instead of independent lawyer[s] because they are engaged in business advice and activities. Both cases raise genuine issues for in-house counsel. 185

5 Financial Fraud Law Report Production Ordered The court in Halifax ordered production of the following documents from the hospital: Referral Log: The compliance department s record of compliance issues was not privileged because it merely recited facts and was not created for the purpose of receiving or rendering advice on legal issues, despite the fact that the hospital created the log to help anticipate legal issues and assess litigation risk. Communications Between In-House Counsel and Compliance: A number of communications between in-house counsel and various compliance personnel were not privileged because they sought compliance assessments or the was not addressed to or from legal counsel. Further, several s merely kept an attorney in the loop or copied an attorney on a compliance issue. No privilege was found if individuals outside of the legal department were copied for informational purposes. Audits and Reviews by Non-Legal Departments (Case Management, Compliance, and Finance): Several documents related to audits and reviews conducted by departments outside of the legal department were not privileged because they did not seek or render legal advice, despite the fact that inhouse counsel were copied for informational purposes. Once again, these s were not addressed to or from attorneys. Accordingly, the court found that they were not sent for the purpose of legal advice. Communications Between In-House Counsel and Finance Department: s between the finance department and in-house counsel were not privileged and were subject to production under the crime-fraud exception where such communications sought the attorneys approval of payments to physicians. The court also underscored that it would not view strings of s as one communication, but instead required the hospital to demonstrate why each in the string was privileged. The court explained, each string listed in Halifax s privilege log must be disassembled and each listed separately in an amended privilege log. 186

6 The Ruling s Significance False Claims Act Decision Undermines Attorney-Client privilege This decision is instructive for legal and compliance departments of all companies, in addition to healthcare providers and those at risk of FCA suits. First, it reminds companies that copying in-house counsel in an may not render the communication immune from later production. Second, the decision underscores how copying individuals who are not attorneys in communications may completely destroy attorney-client privilege. Third, it illustrates that communications between in-house counsel and compliance may not be protected if the communication simply recites facts or does not seek or render purely legal advice. This aspect of the decision might raise problems for many companies since most compliance issues are inherently intertwined with matters that legal counsel must address and render purely legal advice upon. Finally, for those companies that are particularly susceptible to FCA suits, this decision highlights that it is imperative for in-house counsel to quickly consult outside counsel to avoid possible appearances of impropriety in the eyes of a prosecutor who is later likely to suspect that in-house counsel participated in a violation or facilitated an obstruction of justice. Therefore, overall, this decision calls all companies to consider a careful review of their policies concerning communications with in-house counsel and compliance departments. Notes 1 Case No. 6:09-cv-1002, Dkt. # 188, (M.D. Fla. Nov. 6, 2012). 2 Akzo Nobel Chem. v. Comm n, Case C-550/07 (2010), available at europa.eu/jurisp. 187