From our experience in the Department of Justice, in private industry, and in representing businesses as outside counsel, Finch McCranie’s lawyers have seen companies thrown into crises upon discovering potential wrongdoing, fraud, or corruption internally. Corporate leaders can often prevent or mitigate that damage by implementing first-class ethics and compliance programs, by responding appropriately to reports of wrongdoing through internal investigations, by meaningful actions to root out problems when they arise, and by independent “monitoring” to ensure the wrongdoing ends there. These actions put companies in the best position to deal with federal and state investigations, and allow companies to move forward with integrity.
Criminal prosecutions under the Foreign Corrupt Practices Act are increasingly prevalent for companies that do business internationally, as are prosecutions for violations of various other federal statutes that we have addressed as prosecutors and defense counsel.
Finch McCranie’s Larry D. Thompson has made corporate compliance a priority throughout his career as Deputy Attorney General, as United States Attorney, as General Counsel of PepsiCo, as Chair of the Board of Directors of the Ethics Research Center (the research arm of the Ethics and Compliance Initiative), and as counsel to Finch McCranie. With Mr. Thompson’s unparalleled background and our partners’ collective experience in prosecuting and defending violations of criminal statutes, Finch McCranie is especially suited to advise corporate clients on compliance issues to avoid criminal exposure.
In addition, most industries in the United States are impacted by the False Claims Act, as well as other federal laws, including the Stark Law and Anti-Kickback Statute. Any company—whether publicly traded or privately-owned—that does business either directly or indirectly with the federal government (and many state governments) has potential exposure under the False Claims Act. The Justice Department’s use of this civil tool has been vigorous, particularly in health care. Any pharmaceutical manufacturer, health-care provider, nursing home, home health agency, hospice company, clinical laboratory, third-party medical billing company, durable medical equipment, prosthetics, orthotics or supply company, and any other business that participates in Medicare, Medicaid, or another federally funded health-care program is required to comply with the False Claims Act, the Stark Law and Anti-Kickback Statute, and other laws.
Further, any entity receiving federal research grants, participating in subsidy programs or loan guarantee programs of the United States Department of Housing and Urban Development or Department of Veteran’s Affairs, the Small Business Administration, or the Export Import Bank, constructing federal buildings, purchasing government equipment and information technology, or selling goods and services to the military, is subject to the broad reach of the False Claims Act.
Simply put—the False Claims Act can materially affect how a company does business. As a result, a business may need to step up its risk assessment and compliance programs in order to be successful and competitive in the marketplace.
With able counsel to guide them, companies themselves are in the best position to detect and root out business practices that could lead to criminal liability, False Claims Act exposure, or penalties from other violations of law. Companies are prudent to begin with risk assessment. A strong compliance program that is continually evaluated and updated can stop violations before they occur. Early discovery of violations and potentially problematic practices, and prompt disclosure to the government, will go a long way to avoiding costly and impactful government investigations or litigation.
Early detection, correction, disclosure, and repayment to the government can help minimize the risk of criminal liability or False Claims Act exposure. Businesses that make good faith efforts to comply with federal requirements and contracts and have strong and effective compliance programs can minimize their exposure under these statutes and, in the end, avoid or reduce financial losses to their owners and shareholders. Even more significantly, a strong and effective compliance program can serve to avoid unnecessary litigation, costs and negative publicity that can impact a company’s business and share price.
How can Finch McCranie assist a company with compliance under the Foreign Corrupt Practices Act, the False Claims Act, the Stark Law and Anti-Kickback Statute, and other criminal and civil laws?
Finch McCranie’s attorneys can provide guidance to companies that have exposure under the Foreign Corrupt Practices Act, other criminal statutes, and civil laws including the False Claims Act, the Stark Law and Anti-Kickback Statute, by advising on risk assessment and compliance.
Augmenting Mr. Thompson’s and our partners’ broad federal prosecution and defense experience in criminal matters, Finch McCranie has added very experienced counsel from the Justice Department’s Civil Division. As a former Assistant Director at the Justice Department, Renée Brooker has substantial experience evaluating a company’s compliance with the False Claims Act—both publicly traded and privately held companies—particularly in the health care, defense, financial, mortgage and higher education industries, and other laws.
Eva Gunasekera, former Senior Counsel for Health Care Fraud at the Justice Department, has extensive experience investigating the alleged fraudulent practices of physician groups, pharmaceutical manufacturers, Medicare Part C managed care providers, Medicare Part D pharmacy practices, durable equipment manufacturers, and Medicare Part A hospice providers. She also led civil enforcement investigations involving contractors of the Department of Defense, General Services Administration, and Small Business Administration.
Given their collective experiences handling and overseeing False Claims Act actions, Ms. Brooker and Ms. Gunasekera are well positioned to provide legal services to help companies evaluate their potential exposure and risk, and put into place effective compliance programs to minimize or avoid liability.
Finch McCranie’s attorneys can provide compliance guidance to businesses in the health care, financial, defense, education, and oil and gas industries to minimize or eliminate their exposure. With clear compliance guidance to businesses that seek to reduce or eliminate inefficient practices, wasteful spending, and even fraudulent practices within their organizations, our attorneys can assist companies in using internal controls more efficiently to monitor adherence to applicable statutes, regulations and program requirements.
As government attorneys who conducted extensive criminal inquiries and False Claims Act investigations in many industries, Finch McCranie’s attorneys can assist companies in (1) implementing written policies, procedures and standards of conduct; (2) designating a compliance officer and/or compliance committee; (3) developing and conducting effective training and education; (4) developing effective lines of communication; (5) enforcing standards through well-publicized disciplinary guidelines; (6) conducting internal monitoring and auditing; and (7) responding promptly to detected offenses and developing corrective action. Through these measures, the establishment of an effective compliance program can significantly reduce or eliminate a company’s risk of liability.