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On August 11, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a writ of mandamus supporting the robust applicability of the attorney-client privilege and attorney work product doctrines in the context of False Claims Act (“FCA”) investigations conducted under the direction of corporate and outside counsel. This marks a continuation of its repudiation of a 2014 lower-court decision that significantly eroded these privileges. Interpreting the scope of the privileges in the context of internal investigations of potential FCA violations is especially tricky because of the unique roles played by the parties (the Government as a potential plaintiff, the relator as a bounty hunter, and the corporation-as-defendant). This latest ruling from the D.C. Circuit, in a case arising out of wartime contracts in Iraq run by Kellogg, Brown & Root, Inc. (“KBR”)(formerly part of Halliburton), is a breath of fresh air for companies doing business with the Federal Government. The ruling from the Court of Appeals also sends a signal to the trial court that an overly narrow view of the attorney-client privilege and attorney work product doctrine creates unacceptable uncertainty that will ultimately be rejected on appeal.
Continue Reading Whew! That Was Close – D.C. Circuit Reaffirms Application of Attorney-Client Privilege and Attorney Work Product Doctrine in Internal Investigations

On March 6, 2014, the District Court for the District of Columbia issued an opinion in United States ex rel. Barko v. Halliburton Company et al. that should serve as a wake-up call for all companies conducting internal compliance investigations to evaluate whether those investigations are structured in a manner to maximize the protections of the attorney-client privilege and work product doctrines.  The court ordered Kellogg, Brown and Root (“KBR”), a Halliburton subsidiary, to produce documents related to an internal Code of Business Conduct (“COBC”) investigation.  The court found that these documents were not protected under the attorney-client privilege or the work product doctrine because the investigation was conducted to comply with Federal Acquisition Regulation (“FAR”) Mandatory Disclosure requirements and internal policy “rather than for the purpose of obtaining legal advice.”  Critical to the court’s reasoning was that the investigation was conducted by non-lawyers without the involvement of the legal department.
Continue Reading Proceed with Caution: D.C. District Court Says Attorney-Client Privilege and Work Product Doctrine Do Not Survive Internal Fraud Investigation Conducted by Non-Attorneys

In a recent False Claims Act (“FCA”) opinion that has already been heavily criticized, the Fourth Circuit held that a $24 million penalty was not “excessive” under the Constitution even where damages were not proven at trial and where the government had paid only a total of $3.3 million for the services in question.  United States ex rel. Bunk v. Gosselin World Wide Moving, N.V., No. 12-1369 (4th Cir. Dec. 18, 2013).
Continue Reading Fourth Circuit Finds $24 Million False Claims Act Penalty Not Excessive Even Where No Damages Proven at Trial

The SEC awarded more than $14 million to a whistleblower earlier this month in exchange for information that helped the SEC bring an enforcement action against the perpetrators of an investment fraud in less than six months after receipt of the whistleblower’s tip. [1] The award is the largest made by the SEC since the Office of the Whistleblower was set up in 2011 under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. According to SEC Chair Mary Jo White, the hope is that “an award like this will encourage more individuals to come forward.”
Continue Reading SEC Awards $14 Million to Whistleblower

On August 15, 2013, the Ontario Superior Court found Canadian national Nazir Karigar guilty of conspiring to offer a bribe to Indian government officials under the Corruption of Foreign Public Officials Act (“CFPOA”). The CFPOA makes it an offense to directly or indirectly give or offer a loan, reward, advantage or benefit of any kind to a foreign public official in order to obtain or retain an advantage in the course of business.
Continue Reading Canada’s First Foreign Bribery Conviction Shows Trend in Increased Enforcement