Gov’t & Internal Investigations

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Overview

Businesses and individuals in the United States and throughout the world are operating in an environment of increasingly aggressive and punitive government enforcement. Recently, the U.S. Department of Justice and the U.S. Securities and Exchange Commission openly stated they are committed to continuing corporate reform and have been working with international regulatory agencies to combat corporate fraud both within the U.S. and globally. Matters previously handled through civil or regulatory processes now often result in criminal investigations. This increased regulatory scrutiny is complex, burdensome, and costly, and often results in administrative, criminal and civil proceedings. The stakes for individuals are higher, with employees at all organizational levels from sales to top corporate executives and legal departments increasingly finding themselves the targets of investigations.

Kirkland's Government, Regulatory & Internal Investigations Practice Group consists of nationally recognized attorneys including Michael Garcia, former U.S. Attorney for the Southern District of New York; the former Head of the Department of Justice's Fraud Section, a former Assistant Director of the Securities and Exchange Commission's Division of Enforcement, and several former federal prosecutors along with senior lawyers from the Securities and Exchange Commission. We have prominent white collar criminal defense attorneys in each of our six domestic offices as well as significant experience in our London office. Our lawyers have tried several dozen federal criminal cases and Securities and Exchange Commission enforcement actions, and have been involved in a number of the most significant white collar criminal defense matters in the United States. We regularly represent corporations and their executives in matters involving the Foreign Corrupt Practice Act, securities, health care, environmental, tax, public corruption, antitrust, and related areas. Our group has also conducted hundreds of comprehensive internal investigations. Our attorneys are recognized as leading lawyers by Chambers USA, America's Leading Lawyers for Business, Best Lawyers in America, and the International Who's Who of Business Crime Lawyers.

Our attorneys have represented clients before nearly every federal and state agency, including the Securities and Exchange Commission, the Department of Justice, the Environmental Protection Agency, the Food and Drug Administration, the National Association of Securities Dealers, and numerous administrative agencies, including Judicial and Congressional review committees. Additionally, we currently represent numerous multinational entities in administrative, regulatory and criminal proceedings before the European Union and other international governing agencies.

Counseling

When corporations uncover questionable conduct, Kirkland assists by conducting internal investigations and advising companies regarding their options under various disclosure regulations, voluntary disclosure programs and federal sentencing guidelines. Our attorneys collaborate with in-house counsel in conducting internal investigations and responding to public relations and personnel issues that often arise. Our lawyers' extensive criminal defense and prosecutorial experience enables us to provide sound, practical, and up-to-date advice necessary to manage all aspects of criminal exposure. As a result, we have successfully assisted clients in negotiating favorable "global" settlements concerning criminal, administrative and civil aspects of enforcement actions.

Our attorneys' vast experience working for governmental agencies enables us to walk our clients through each step of the process, working collaboratively with governmental agencies to limit business disruption. As a result, we have developed procedures and protocols that we are able to tailor to our clients' specific needs. The success of our protocols is evident in the efficient inquiry resolution and lack of adverse actions brought against our clients.

Our team's extensive experience in dealing with all aspects of corporate compliance ranges from designing and implementing effective, state-of-the-art programs, to counseling concerning compliance officer responsibilities, cost management and the appropriate handling of information obtained during internal reviews and audits.

In instances where our internal investigations have revealed holes in a client's compliance procedures, we have successfully worked with the Department of Justice to enter into Deferred Prosecution Agreements, enabling our clients to rectify any administrative lapses and to implement new procedures and safeguards to promote future compliance and avoid adverse actions.

The Firm has provided advice on compliance issues to Aon Corporation, Accenture, Associated Insurance Companies, Bayer Corporation, Caremark, Hughes Aircraft, Innospect, Kraft Foods Inc., Philip Morris Companies, Inc., Pharmaceutical Basic, Inc., Suzuki Motor Corporation, Syscon, Teledyne, Inc., Tyco, and Uno-Ven Company, among others. Our team stays abreast of new laws and regulations and promptly alerts clients concerning needed updates and revisions to their compliance programs.

Litigation

The Firm has successfully guided corporate and individual clients through grand jury investigations and, when indicted, through trial. Kirkland enjoys an outstanding national reputation as a trial law firm. Kirkland was chosen as The American Lawyer's "2008 Litigation Department of the Year." According to the publication, "What sets Kirkland apart is the number of high-stakes, high-impact trials its lawyers have won since the start of 2006. Kirkland tried 30 cases to verdict, winning more significant trials than any other firm in our contest." Kirkland was also chosen as a finalist for this award in The American Lawyer's 2010 survey. In every year since 1995, Kirkland has ranked as one of the most frequently used firms by Fortune 100 companies in The National Law Journal survey, "Who Represents Corporate America."

The aggressive trial strategies employed by our lawyers produce successful results in complex criminal and civil litigation. When a favorable resolution of a criminal matter cannot be achieved before an indictment is returned or charges are filed, our lawyers stand ready to aggressively defend clients before government agencies and at trial.

Practice Strengths

Kirkland lawyers have represented individual and corporate clients in numerous significant investigations and prosecutions, including those involving allegations of government contract procurement fraud; accounting fraud; criminal forfeiture; environmental crimes; bank and savings and loan fraud; securities fraud; commercial bribery; criminal antitrust violations; conspiracy; document destruction; obstruction; privacy issues; qui tam and whistle-blower retaliation; federal extortion and political corruption matters under both federal and state law; racketeering violations under the RICO Act; money laundering; mail and tax fraud violations; tax shelter fraud; labor racketeering; and Foreign Corrupt Practices Act violations, compliance and due diligence matters.

Anti-Money Laundering

We represent traditional financial institutions, as well as private equity and hedge funds, in investigations and prosecutions related to money laundering violations, including failure to adequately protect against violations of the U.S. Patriot Act.

Select representations include:

  • Represented an American investment bank in connection with an alleged European investment fraud and money laundering scheme; and

  • Represented a foreign bank regarding potential liability under U.S. anti-money laundering statutes.

Antitrust

With more than 150 lawyers in our antitrust and competition practice, our attorneys handle criminal and civil cases in federal and state courts nationwide and regularly counsel clients in a variety of industries. The Firm's outstanding experience in both counseling and litigation uniquely qualifies our attorneys to serve as lead counsel in major antitrust government investigations and follow-on class actions. In such matters, Kirkland actively counsels its clients on pricing, distribution and other strategic business matters. Kirkland also provides advice on U.S. antitrust law to non-U.S. companies and law firms. Kirkland is recognized as one of the top-tier firms in the area of antitrust by Chambers Global: The World's Leading Lawyers for Business 2008.

Our reputation stems from our involvement in several seminal cases such as United States v. United States Gypsum, 438 U.S. 422 (1978); United States v. General Motors, 1974-2 Trade Cas.(CCH) ¶ 75,253 (E.D. Mich. 1974) (fleet discount); United States v. Standard Oil Co., 316 F.2d 884 (7th Cir. 1963). More recently, Kirkland has obtained defense verdicts in the following criminal antitrust cases: United States v. NL Industries in New Orleans (oil field services) and United States v. VSL, Inc., et al., in Miami (concrete construction).

Select representations include:

  • Representing a Japanese business executive and current Bridgestone employee in the Department of Justice's marine hose and marine fender investigations alleging criminal violations of the Sherman Act for price-fixing in the marine hose industry; and

  • Representing Eva Airways, a Taiwanese airline, in its defense of federal antitrust class action litigation in the Northern District of California alleging price-fixing in the setting of passenger fares and surcharges.

Environmental Violations and Compliance

We represent corporations and individuals against charges of criminal violations of both state and federal environmental laws including the Clean Air Act, Clean Water Act, Toxic Substances and Control Act and the Resource Conservation and Recovery Act.

Select representations include:

  • Representing W.R. Grace in federal criminal prosecution alleging conspiracy to violate the Clean Air Act, conspiracy to defraud the United States, knowing endangerment in violation of the Clean Air Act, and obstruction of justice in connection with the company's operation of a vermiculite mine in Libby, Montana. The Department of Justice proclaims the Grace case to be the most significant environmental prosecution in its history;

  • Representing BP Products North America, Inc., in connection with a criminal environmental proceeding resulting from an explosion at the country's third-largest refinery in Texas that killed 15 people; and

  • Representing a cruise ship line in a federal grand jury investigation into possible environmental violations.

Financial Institutions and Accounting Fraud

Our representation of financial institutions includes officers and directors, accountants, securities firms, brokers, investment advisors, fund managers, underwriters, issuers and individuals in a variety of enforcement actions brought by the Department of Justice and Securities and Exchange Commission, as well as actions brought by attorneys general and other regulatory bodies. Over the years, Kirkland has represented accounting firms and other professional service companies throughout the U.S. in a wide range of commercial litigation matters, including professional malpractice, securities and shareholder actions, Securities and Exchange Commission matters, contract disputes and other related cases. Our success in assisting clients in these areas stems from our familiarity with the issues and challenges facing accounting firms and professional service companies.

Select representations include:

  • Representing major broker/dealer in parallel Securities and Exchange Commission and Financial Industry Regulatory Authority investigations into possible securities law violations related to a pension consulting business;

  • Representing a Big Four accounting firm in connection with an investigation by the Securities and Exchange Commission into financial statement errors and disclosure issues concerning an insurance industry client's disclosure of a related party transaction;

  • Representing a global investment bank in connection with the Securities and Exchange Commission's investigation into the trading practices of one of its large institutional clients;

  • Representing a Big Four accounting firm in connection with the Securities and Exchange Commission's investigation into an audit client's restatement;

  • Represented a hedge fund and its founder in the Securities and Exchange Commission's investigation into short selling of PIPEs securities; and

  • Representing an individual investment manager charged in the largest criminal tax fraud in U.S. history.

Foreign Corrupt Practices Act

Kirkland counsels U.S. and international businesses in Foreign Corrupt Practices Act compliance and similar international laws. We have handled numerous matters before the Department of Justice and Securities and Exchange Commission and are recognized leaders in the area of compliance. We conduct internal investigations, establish effective compliance programs and conduct ongoing due diligence. Our compliance programs and early self-disclosure to regulatory agencies has routinely led to favorable dispositions with the Department of Justice and Securities and Exchange Commission.

Select representations include:

  • Representing one of the largest engineering companies in the world with annual revenues of more than $27 billion and operations in more than 100 countries in connection with an FCPA investigation in Texas, Taiwan, Abu Dhabi, Venezuela, Russian, Indonesia, Malaysia and Italy;

  • Representing a global medical device manufacturer in connection with an informal FCPA investigation by the Department of Justice and Securities and Exchange Commission related to the sale of medical devices in seven foreign countries; and

  • Representing a worldwide PR company in connection with an investigation by the U.S. Attorney's office related to potential FCPA violations committed by certain individuals and entities in connection with public relations work for the Tourism Authority of Thailand.

Forfeiture

The seizure of assets because of civil or criminal actions is increasing, along with government prosecutions. We regularly defend our clients and protect their assets in the U.S. and abroad when faced with forfeiture proceedings.

Select representations include:

  • California Public Recycling Metals, Inc.'s President, Steve Helvik, as a potential witness in the potential asset forfeiture case: USA, et al. v. Four F-14 Tomcat Aircraft; and

  • Representing actress Anne Hathaway in connection with the investigation and indictment of her former boyfriend Raphael Follieri on fraud charges that he misappropriated investor funds and misrepresented ties to the Vatican.

Health Care Fraud

We defend health care providers, insurance companies, medical device companies and others in a variety of health care-related fraud matters including violations of anti-kickback statutes, Medicare and Medicaid fraud, and prescription drug fraud.

Select representations include:

  • Representing a national health care provider in connection with parallel criminal, civil and administrative proceedings arising from the company's participation in the Medicare and Medicaid Prescription Drug Program;

  • Representing a nationwide health insurance company in investigations by the New York and Connecticut Attorneys General into out-of-network reimbursement methodologies; and

  • Representing a subsidiary of a global PR company in relation to an off-label promotion investigation of a Novartis subsidiary, Chiron.

Public Integrity, Ethics and Corruption

We represent individuals in connection with allegations of public integrity, corruption and fraud at the judicial, congressional and administrative levels.

Select representations include:

  • Representing former Congressman Randall "Duke" Cunningham in connection with a post-conviction investigation by the Department of Justice and potential sentence reduction;

  • Representing Chief Justice Alex Kozinski in connection with a judicial misconduct disciplinary proceeding; and

  • Represented an individual attorney in Governor Spitzer's executive chamber in connection with the New York Attorney General, Albany District Attorney and New York Commission on Public Integrity's "Troopergate" investigation. At the conclusion of the Commission's investigation, our client was completely exonerated.

Securities

Kirkland represents and counsels clients in connection with insider trading, insider lending, market timing and stock manipulation, stock option back dating, disclosure fraud and violations of the Investment Advisers Act. We provide a wide range of important counseling, regulatory and enforcement matters (Securities and Exchange Commission, FINRA and NYSE, Department of Justice, and federal bank regulation proceedings), internal investigations, and compliance reviews for public companies, broker-dealers, investment advisers, investment companies, and individuals across the U.S. In these engagements, we are able to draw upon lawyers at our Firm who are former senior members of the staff of the Securities and Exchange Commission and former federal prosecutors with an extensive securities enforcement practice, and we have been successful in obtaining declinations and favorable settlements.

Select representations include:

  • Representing a global medical device company in its voluntary disclosure of potential options backdating to the Securities and Exchange Commission and in representing the company in connection with the resulting Commission investigation;

  • Representing a large telecommunications provider in an internal investigation into investments in Auction Rate Securities;

  • Representing an individual in connection with consolidated securities class actions against a leading European corporate and investment bank for alleged securities violations pertaining to the misstatement of balance sheet information related to subprime losses;

  • Representing a Forbes 400 investor and board member of a European corporate and investment bank in connection with an Securities and Exchange Commission investigation and related matters;

  • Successfully represented the Special Committee to the Board of Directors in the alternative fuels industry in connection with an investigation by the Securities and Exchange Commission into financial statement errors and disclosure issues related to options backdating and executive compensation; and

  • Representing a leading on line provider of cell phones and wireless service in connection with an Securities and Exchange Commission investigation of former owners and managers of assets purchased out of a bankruptcy auction.

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