Been a while — not sure “Roundup of White Collar News” is the catchy phrase we’re looking for after a month or so, but here we go:

  • Interesting explanation of the Carter Page FISA application over at Lawfare
  • The Attorney General announced the publication of the Cyber-Digital Task Force Report — Question: does anyone actually read a bureaucratic monstrosity like this?
  • Good for the DOJ — firing reservists because they’re performing military duty is awful, not just illegal
  • Good for the DOJ again — I can never get enough of health car fraudsters getting caught and being made to pay
  • Blows my mind that we’re even having a debate as to whether a president’s conduct amounts to treason
  • Very sad day for L.A. — Jonathan Gold, the man who informed me it was ok, even right, to put yellow mustard on my pastrami sandwich died today

Chaplin later regretted this satirization

 

Immigration SignForm I-9 Audits: Formally, an I-9 audit is called an Administrative Inspection.  It begins when ICE serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may only request I-9 forms and a list of current and past employees with their social security numbers. ICE may not request any personnel file that goes beyond this information. A Notice of inspection must be served at least three days before ICE conducts the audit. During this time, we recommend that the company make copies of all documentation it intends to provide to ICE and further recommend asking ICE if it will accept copies instead of original paperwork. The company is entitled to keep copies of the documents it provides in response to the Notice. Keep in mind that the Department of Labor may also request I-9 forms as part of their audit responsibilities.

ICE will give the company ten (10) days to correct any technical or procedural deficiencies in documentation. If the company fails to provide an I-9 for any employee or fails to correct a paperwork error, any violation subsequently found may be treated as a “substantive” violation, which can carry a fine of up to $1,100 per violation.  Further, if the company hires an unauthorized worker, or continues to employ a worker after discovering improper documentation, the company can be fined up to $16,000 per violation, and company executives and/or HR managers may be subject to criminal prosecution.  The investigation can last several months.  If ICE finds no violations, it will issue a “Notice of Inspection Results,” called a “compliance letter.”

Immigration “Raids”: ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out such a “raid,” ICE must apply for a judicial (as opposed to an administrative) search warrant or arrest warrant for certain individuals. ICE may obtain such a warrant based on evidence such as noncompliance during an I-9 audit, a “tip” regarding an improperly documented employee, or the offsite arrest of an employee who admits to working there without proper authorization. A judicial search warrant, which is issued by a court, permits ICE to search areas of a business not otherwise open to the public. Without a judicial search warrant, ICE may only enter areas of the business open to the public.

In order to carry out an effective response to such a raid, consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.  The Lead will be responsible for notifying in-house or outside counsel, and facility personnel of the raid, and act as the company’s official point of contact for law enforcement throughout the raid.

Continue Reading Response Protocol for I-9 Audit and Immigration Raid

Department of JusticeHypothetical Bad News. You or your company has been served with a civil investigative demand requiring you to produce documents and answer questions from the government. The Department of Justice (DOJ) is investigating you for suspected violations of the False Claims Act, or perhaps for participating in a price-fixing conspiracy in violation of the antitrust laws. The investigation could drag on for years and—if you’re found liable—you may be on the hook for millions of dollars.

Hypothetical Worse News. Government agents have also inspected your premises pursuant to a search warrant, and you learn that associates of yours have been subpoenaed to testify before a grand jury. You are the target—or at least the subject—of a criminal investigation. For a company, a criminal conviction and associated fines could be devastating. For an individual, it could result in the loss of your liberty.

To provide a more concrete example, there have been dozens of administrative and criminal proceedings over the last few years that grew out of a massive public corruption scandal involving the bribing of dozens of Navy officials in exchange for participating in or turning a blind eye to baseless bills from an overseas defense contractor. Many participants have been criminally prosecuted, but the criminal investigation (which remains ongoing) has also coincided with administrative enforcement actions that resulted in the debarment of numerous contractors, permanently preventing them from doing business with the government.

More and more, government officials and agencies bring to bear all of the enforcement tools—civil, criminal, and administrative—in parallel investigations and proceedings to put a stop to unlawful conduct.  If you’re the target of parallel investigations, you and your lawyer will need to be mindful about the different discovery tools available to the government, the risks of compromising your rights in one investigation through your response to another, and the need for a global settlement with the government.

All of that could fill a treatise, so I won’t try to cover it here.  Instead, I’ll cover:

  • A brief overview of the DOJ’s approach to parallel investigations and proceedings (they’re favored).
  • Your chances of halting either a civil or administrative proceeding pending resolution of the criminal case (spoiler alert: not great).
  • The importance of thinking strategically at every stage of your response—not just about the individual request or process you’re responding to—but also about how it affects the other investigations (it’s really important).

Continue Reading A Quick Look at Parallel Proceedings

And no one expects a target letter. The Department of Justice defines a “target” of federal criminal investigation as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” Federal prosecutors are encouraged to notify targets of their status and give them a chance to testify before the grand jury when such notification won’t compromise the integrity of the government’s investigation—such as by prompting the target to flee the jurisdiction or destroy evidence. When they’re given, those notifications are known as target letters.

We want our clients to avoid getting those target letters. That starts with great compliance programs and robust internal controls to avoid fraud and other malfeasance. It also takes rigorous and sensitive internal investigations to determine whether there’s a problem. If the government begins its own investigation, potential white collar defendants need careful counsel to avoid enforcement action, which can take the form of civil, criminal, and administrative proceedings, and to achieve the best possible outcome in any enforcement action that does ensue.

Target Letter is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. We’ll focus particularly on gathering news and providing analysis of white collar issues related to healthcare, government contracting, technology, money laundering, corruption, and fraud and enforcement developments in the Pacific Northwest.  Because no one expects the Spanish Inquisition . . . .