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July 26th, 2011
The Securities and Exchange Commission (SEC) whistleblower program provides for rewards for individuals who provide the government with information about violations of the Foreign Corrupt Practices Act (FCPA) of 1977.
The FCPA was enacted in 1977 in an effort to end the practice of multinational corporations obtaining business abroad by bribing foreign officials. The Act covers any U.S. company or citizen doing business abroad. It covers foreign companies — and their directors, officers, stockholders, employees and agents — with reporting and registration requirements under the Securities and Exchange Acts as well as any foreign person or company acting within the United States.
The FCPA makes it unlawful to bribe a foreign government official to obtain or retain business. The Act prohibits U.S. companies and individuals from paying money or any other sort of inducement, including an offer or promise to pay money or anything of value, to a foreign official with the intent to influence a decision or action affecting that company’s business.
A foreign official is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.”
The Department of Justice (DOJ) is the chief enforcement agency, with a coordinate role played by the SEC. The DOJ is responsible for all criminal enforcement and for civil enforcement of the anti-bribery provisions with respect to domestic concerns and foreign companies and nationals. The SEC, on the other hand, is responsible for civil enforcement of the anti-bribery provisions with respect to issuers.
The FCPA provides for criminal and civil penalties. The criminal penalties include fines on officers, directors, stockholders, employees and agents of up to $250,000 and up to five (5) years in prison. Meanwhile, corporations and other business entities can face criminal fines of up to $2 million, or alternatively twice the amount of ill-gotten profits. The civil fines under the FCPA include $10,000 against any violating company and individual. Moreover, the SEC may also require a disgorgement of profits.
In the past few years, prosecutions under the FCPA have dramatically increased. The SEC has established an enforcement unit, targeting violations of the FCPA by U.S. issuers. The DOJ has similarly assigned prosecutors and FBI agents exclusively to the FCPA. The federal authorities have also instituted more aggressive investigative tactics in their pursuit of FCPA violations.
The DOJ and the SEC recently settled with Johnson & Johnson (J&J) for $71 million. J&J agreed to pay $21.4 million in criminal penalties as part of a deferred prosecution agreement. J&J additionally settled a related matter filed by the SEC agreeing to more than $48.6 million in disgorgement of profits and pre-judgment interest. The $71 million aggregate settlement by J&J registers as just the 10th largest FCPA-related settlement since 2008.
The top nine FCPA related settlements are as follows: (1) Siemens for $800 million in 2008; (2) KBR/ Halliburton for $579 million in 2009; (3) BAE for $400 million in 2010; (4) Snamprogetti Netherlands B.V. for $365 million in 2010; (5) Technip S.A. for $338 million in 2010; (6) JGC Corp. for $218.8 million in 2011; (7) Daimler AG for $185 million in 2010; (8) Alcatel-Lucent for $137 million in 2010; and (9) Panalpina for $81.8 million in 2010.
If you have knowledge of an FCPA violation or other securities law violations and would like to discuss the possibility of a whistleblower award under the SEC or CFTC whistleblower programs, please contact our whistleblower attorneys today. Kenney & McCafferty will consult with you about your case, without obligation. All communications with Kenney & McCafferty attorneys regarding your case are confidential and protected by attorney-client privilege.
Tags: Department of Justice, DOJ, FCPA, FCPA violation, Foreign Corrupt Practices Act, SEC, Securities and Exchange Commission whistleblower program, Securities law violations, whistleblower, whistleblower award, whistleblower reward
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May 31st, 2011
Following the 6th Circuit’s dismissal of an appeal by Defendants Renal Care Group and Fresenius Medical Care for lack of jurisdiction, on May 26, 2011, U.S. District Judge William J. Haynes entered an order awarding $82.6 million to the United States in a Medicare fraud case against the two companies. While replacing an earlier $19.3 million judgment issued last year against the same defendants, the Court upholds its prior determinations against RCG.
In his written opinion, Judge Haynes stated that RCG and its parent company, Fresenius Medical Care Holdings, Inc. “exhibited reckless disregard of legal mandates” in their billing practices and remarked that management officials failed to heed the advice of company lawyers. Applying the full force and effect of the False Claims Act’s provisions, in rendering the judgment, Judge Haynes trebled the calculated damages for a total of $38,873,592 and imposed maximum civil penalties in the amount of $43,769,000 for a total of $82,642,592. Pending any appeal by the defendants, this judgment represents a tremendous success for the Government in the fight against fraud and reinforces the harsh penalties for violative practices by corporations.
Filed in 2005 under the False Claims Act on behalf of former RCG employee Julie Williams, and nephrologists, Dr. John Martinez by Philadelphia based firms Kenney & McCafferty, P.C. and Egan Young, the case alleges that Renal Care Group (“RCG”) submitted false claims for equipment provided to End-Stage Renal Disease (“ESRD”) home dialysis patients from January 1999 through December 2005. Additionally, the lawsuit claims that RCG set up a sham billing company, RCG Supply Co., thereby interfering with patients’ right of choice for supply options.
Transferred to the Middle District of Tennessee in 2009, the federal case was led by the U.S. Attorney’s Office for the Eastern District of Missouri under the direction of Assistant U.S. Attorney Andrew Lay with the assistance of the U.S. Attorney’s Office for the Middle District of Tennessee, under the direction of Assistant U.S. Attorney Lisa Rivera, and Laurie Oberembt and John Henebery from the Department of Justice.
To read Judge Haynes Memorandum Opinion, please click here.
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May 26th, 2011
Look for this link on the SEC's home page.
Since the Commission’s 3-2 vote adopting the final rules yesterday, the SEC has made the document available on its website at ttp://www.sec.gov/news/press/2011/2011-116.htm
Kenney & McCafferty is carefully reviewing the document and determing how the new rules can benefit those reporting securities violations. For a free consultation about a potential claim of your own, please call K&M today.
Tags: abuse, corporate fraud, False Claims Act, fraud, government fraud, health care fraud, pharmaceutical fraud, retaliate, retaliation, Tax Fraud, tax whistleblower, waste, whistle blower, whistle blowing, whistleblower, whistleblowing, wrongful termination
Posted in corporate fraud, Corporate Tax Fraud, False Claims Act, government fraud, Money Laundering Tax Fraud, SEC Whistleblower Program, Uncategorized, Whistleblower Protection | No Comments »
May 25th, 2011
Mary Schapiro presided over the vote approving the SEC whistleblower rules.
In a split vote, the SEC adopted final rules to implement the whistleblower program provisions enacted under Dodd Frank in July 2010. Chairman Mary Schapiro presided over the discussion, with Sean McKessy and Stephen Cohen of the SEC’s staff answering questions by the commissioners on the proposal.
Cohen said that the SEC had strengthened its Office of Market Intelligence to handle the incoming tips and would be adding a special Whistleblower page to a new Tips, Complaints, and Referrals section of the SEC’s webpage. McKessy said that they have not seen a significant increase in the number of tips to the SEC since the passage of Dodd Frank, but staff has seen an improvement in the number of high quality tips received.
Commissioners Walter and Aguilar praised the SEC staff for implementing a “robust public process” leading to the development of today’s rules. Commissioner Paredes dissented and said that he thought the rules did not adequately preserve the role of internal corporate compliance programs and the process for reporting of tips would be a deterrent to whistleblowers. Paredes also said he voted against the proposal because the rules as proposed would create an “undue risk of encouraging low quality submissions.” Paredes said the issue was not the merit of whistleblower programs, but anticipated problems created by this particular set of rules.
Schapiro called for the vote, and the final rules were passed 3 to 2.
Tags: abuse, corporate fraud, False Claims Act, fraud, government fraud, health care fraud, pharmaceutical fraud, retaliate, retaliation, Tax Fraud, tax whistleblower, waste, whistle blower, whistle blowing, whistleblower, whistleblowing, wrongful termination
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May 19th, 2011
Justice Clarence Thomas Wrote the Schindler Decision
Justice Clarence Thomas wrote the majority opinion holding that Freedom of Information Act request responses constitute “reports,” relators who rely on FOIA request responses can fall prey to the public disclosure bar of the False Claims Act. The Court issued the opinion in Schindler Elevator Corp v. United States ex rel. Kirk on May 16, 2011. Justice Ginsburg filed the dissenting opinion, in which Justices Breyer and Sotomayor joined.
Relator Daniel Kirk, a military veteran, worked for Schindler Elevator from 1978 to 2003. He resigned in September 2003 saying that the company had forced him out. Kirk filed his False Claims action in 2005. In an amended complaint in 2007, Kirk alleged that Schindler has improperly submitted for payment hundreds of false claims to the government because Schindler had certified it was in compliance with VEVRAA reporting requirements. Kirk alleged the certification of compliance was false.
Relator Kirk sought verification that his allegations were correct by asking his wife to ask for Schindler’s reporting information through a FOIA request. Mrs. Kirk made three requests, and DOL responded with information that showed the reports were not filed for several years in question.
Schindler asked the Court to dismiss the case on the ground that the verification information Mrs. Kirk obtained through the FOIA requests was a “public disclosure.” Under the pre-existing public disclosure rules, whistleblower claims could be dismissed if the relator was found to have “based” the allegations on specified types of publically available information. In Schindler, J. Thomas said that a FOIA response = a report = a public disclosure. He left open the question of whether or not Mr. Kirk based his allegations on those FOIA responses.
False Claims actions can be complicated, and the statute requires a whistleblower to be represented by an attorney. For a free consultation on a potential government fraud claim, please call Kenney & McCafferty, P.C. today.
Tags: abuse, clarence thomas, corporate fraud, corruption, False claims, False Claims Act, FCA, FERA, fraud, fraud reward, government fraud, public disclosure, Qui Tam, reward, supreme court whistleblower, tax whistleblower, whistle blower, whistle blowing, whistleblower appeals, whistleblower reward, whistleblowing, wrongful termination
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May 18th, 2011
The IRS Building in Washington, D.C.
Linda Stengle of Kenney & McCafferty, P.C. presented testimony before the IRS on May 11, 2011, on its proposed definition of “collected proceeds.” The definition, if approved, would form the basis of calculating whistleblower awards.
The IRS had four people on a panel to hear the comments. They were Tom Kane, Senior Legal Counsel; Stephen Whitlock, Director of the Whistleblower Office; Alexandra Minkovich, Attorney-Advisor; and Kirsten Witter, Chief of the Service’s Ethics and General Government Law Branch. The panel asked questions of a few presenters, including Stengle. Tom Kane stated that NOLs should be considered to be ordinary deductions and were not relevant to an award calculation. Kane also said there should be no 2 year waiting period imposed in cases involving a closing agreement and that further guidance would be issued with regard to whether whistleblowers can obtain a portion of criminal fines.
Stengle pointed out irregularities in the public comment process ordinarily required when the IRS changes a major regulation. Specifically, the IRS issued its Whistleblower Manual in June 2010 without public comment and narrowed the definition of “collected proceeds.” Senator Grassley, the author of the statute mandating IRS whistleblower awards, criticized the Manual and said that several sections worked to deter whistleblowers from reporting large scale tax underpayment. Stengle echoed Grassley’s request that the manual be held in abeyance while substantive sections undergo public comment.
Four other attorneys presented testimony on the topic. Among other comments, Richard Rubin observed that the proposed rule addressed the inclusion of specific categories of recovery into the definition, but no actual definition for “collected proceeds” exists anywhere in the regulations.
All those who presented stated that the proposed definition for collected proceeds needed to be broadened. The panel members gave no indication of when the IRS plans to publish the final version of the definition.
Tags: corporate fraud, government fraud, IRS, IRS reward, IRS whistleblower program, tax evasion, Tax Fraud, tax underpayment, tax whistleblower, whistleblower award, whistleblower reward
Posted in Abusive Tax Shelters, Corporate Tax Fraud, Employment Tax Fraud, Estate Tax Fraud, IRS Whistleblower Office, Money Laundering Tax Fraud, Offshore Accouts Fraud, Tax Fraud, Uncategorized, Whistleblower Protection | No Comments »
May 4th, 2011
Corporate investigators and attorneys will protect the company. It's their job.
A long time corporate investigator recently shared his concern that whistleblowers look to corporate investigators and attorneys for help and protection when they blow the whistle. Nothing could be further from the truth. “There’s nothing I can do,” said the investigator. “I’ve seen it over and over again. They are going to get their heads cut off.”
The investigator said he knew that whistleblowers, no matter the merit of their report, would be skillfully and systematically terminated with a substantial paper trail to support management’s actions.
“They look to me for help,” he said. “I work for the company. I tell them that, but they don’t seem to understand.”
Neither did CEO Ian Norris of Morgan Crucible Company. Morgan Crucible came under government investigation for an international price fixing conspiracy. CEO Norris began a campaign to obstruct a grand jury investigation, and he shared details of his campaign with Morgan Crucible’s attorney. When the government learned of Norris’s obstruction, it charged Norris with corruptly persuading, and attempting and conspiring to corruptly persuade, others with intent to influence their testimony in grand jury proceedings. Morgan Crucible waived its attorney client privilege and granted permission for corporate counsel to testify. Norris fought the testimony, saying the corporate attorney also represented Norris in his individual capacity and was prohibited from testifying.
The Third Circuit disagreed, but found that communications about scope of representation were ambiguous. Ultimately, the court ruled that Morgan Crucible, alone, held the right to waive attorney client privilege, and the attorney testified.
The attorney testified that Norris, in front of counsel, disseminated a false cover story and scripts about the price fixing and encouraged everyone, including counsel, to relay the false information to investigators. The attorney said he did not know the information was false.
Attorneys and investigators should provide employees with explicit explanations about their role in investigating allegations of fraud within a corporation. They often do not, for a variety of reasons. Bottom line – employees need to take steps to protect themselves when they report corporate misconduct internally.
For a free consult about whether you have a potential government fraud claim, call K&M today.
Tags: abuse, attorney general, corporate fraud, corruption, False claims, False Claims Act, FCA, FERA, fraud, fraud reward, government fraud, health care fraud, IRS whistleblower, IRS whistleblower program, medicare fraud, pharmaceutical fraud, Qui Tam, retaliate, retaliation, SEC whistleblower, Tax cheat, tax evasion, Tax Fraud, tax whistleblower, whistle blowing, whistleblower award, whistleblowing, wrongful termination
Posted in Corporate Tax Fraud, Employment Tax Fraud, False Claims Act, Money Laundering Tax Fraud, Offshore Accouts Fraud, retaliation, SEC Whistleblower Program, Tax Fraud, Uncategorized, Whistleblower Protection | No Comments »
April 28th, 2011
SEC wants to "get it right."
The SEC has postponed adoption of rules for its whistleblower program. According to the Dodd-Frank Act, final regulations for the whistleblower program were to be adopted by the SEC no later than April 21, 2011. Earlier this week, the SEC announced on its website that it is planning to adopt new rules some time between May and end of July. SEC spokesperson John Nester did not provide any specifics about the delay, commenting only that the SEC was crafting all the new rules for Dodd-Frank with an emphasis on “getting it right.”
The financial industry needs an effective fast-track incentive program for whistleblowers. The Dodd-Frank program augments the SEC’s 40 year old insider trading reward program that never realized its potential as a decentralized fraud enforcement mechanism. The SEC, under the old insider trading program, only paid out awards to whistleblowers four times. SEC watchers generally discount the insider trading program and are skeptical about the SEC’s interest in working with whistleblowers in general.
The new Dodd-Frank whistleblower program has generated considerable interest among would be whistleblowers and large companies. Frustrated employees and fraud fighters are delighted to have another program that incentivizes whistleblowers; large companies criticize the program because it encourages whistleblowers to report fraud directly to the government, bypassing internal corporate compliance procedures.
Whistleblowers could file SEC claims for rewards under the Dodd-Frank Act as of last July but will be expected to comply with the new rules once the new rules are adopted. Kenney & McCafferty, P.C. is happy to assist you in assessing your potential SEC whistleblower claim. Call K&M for a free consultation today
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Posted in retaliation, SEC Whistleblower Program, Uncategorized, Whistleblower Protection | No Comments »
April 26th, 2011
In Friedland v Commissioner (T.C. Memo 2011-90), the United States Tax Court dismissed the IRS whistleblower’s appeal because it was not filed within thirty days of the date of the “no answer letter” sent to Friedland by the IRS Whistleblower Office. The Tax Court reiterated its ruling in Cooper – the “no answer letter” constitutes a final determination of a whistleblower claim.
Murray Friedland, a CPA, reported two corporations for tax violations in September 2009. On November 13, 2009, the IRS Whistleblower Office sent Friedland a letter explaining that it had reviewed and evaluated the claim and then said that prevailing law prevented it from explaining why a claim would be denied. Friedland found the letter confusing. He sent additional information about his claim to the Whistleblower Office, and he called for an explanation. The WO responded with three letters, one memorializing a conversation in which Friedland was told that he could write to the US Court of Federal Claims. The letters also confirmed that the WO would not change its determination about Friedland’s claim.
Friedland followed the suggestion of the WO and appealed to the Court of Federal Claims. The Court of Federal Claims dismissed the appeal on May 26, 2010, because the CFC does not have jurisdiction to hear IRS whistleblower appeals. On June 18, 2010, Friedland filed an appeal with the Tax Court.
Friedland filed his appeal 217 days after the date of the first letter, the “no answer letter.” As decided in previous Tax Court rulings, the “no answer letter” is notice of a final determination that the IRS is denying the claim. Whistleblowers have thirty days from the date of the no answer letter to file their appeals. Because Friedland filed 217 days after the date of the no answer letter, the Tax Court ruled that it had no jurisdiction over the claim because it was filed too late.
With regard to Friedland’s obvious confusion about the appeal process, the Tax Court said, “We recognize that petitioner may have relied on the erroneous advice of the Whistleblower Office in filing his initial appeal with the Claims Court. . . We sympathize with the petitioner. We cannot expand our jurisdiction, however, even where the Commissioner provided bad advice.”
Kenney & McCafferty, P.C., has successfully represented IRS whistleblowers, even before the passage of the 2006 whistleblower statute. For knowledgeable and trustworthy representation, contact K&M for a free assessment today.
Tags: Abusive Tax Shelters, Corporate Tax Fraud, Employment Tax Fraud, Estate Tax Fraud, fraud reward, IRS whistle blower, IRS whistleblower, offshore tax fraud, Tax cheat, tax claims, tax court, tax evasion, Tax Fraud, tax petition, tax underpayment, tax whistle blower, tax whistleblower, tax whistleblower petition, whistleblower appeals, whistleblower award, whistleblower reward
Posted in Abusive Tax Shelters, Corporate Tax Fraud, Employment Tax Fraud, Estate Tax Fraud, IRS Whistleblower Office, Money Laundering Tax Fraud, Offshore Accouts Fraud, retaliation, Tax Fraud, Uncategorized, Whistleblower Protection | No Comments »
April 14th, 2011
One of many IRS YouTube offerings.
Not exactly, but the IRS has introduced its own YouTube channel, along with an array of audio products to help taxpayers take advantage of tax benefits available in the American Recovery and Reinvestment Act. People can visit the site at www.youtube.com/irsvideos. The IRS YouTube channel caters to people of different backgrounds by offering videos in English, Spanish, and American Sign Language.
One video teaches viewers how to use the IRS Withholding Calculator. The IRS suggests that people who have more than one job or working spouses should especially check their withholding to ensure neither too much nor too little is being withheld. People can use the calculator to help determine if they should make adjustments. Another video of interest discusses the role of an interim appeals office and what taxpayers can expect from that office.
In another attempt to make the tax code more transparent to today’s filers, the IRS has also launched an ITunes podcast site featuring information about ARRA tax credits.
Unfortunately, the IRS tax whistleblower program has not been the subject of a YouTube video, at least not one produced by the IRS. However, interested tax fraud followers can go to YouTube and type in “irs whistleblower.” One of the results listed will be a video of an IRS Whistleblower Conference panel discussion starring K&M’s lead partner Brian Kenney.
Of course, if you would like to learn more about the IRS whistleblower program, there’s no need to look at YouTube at all. Call Kenney & McCafferty at 215-367-4333 for a free consult today.
Tags: corporate fraud, government fraud, IRS, IRS reward, IRS whistleblower program, tax evasion, Tax Fraud, tax underpayment, tax whistleblower, whistleblower award, whistleblower reward
Posted in Abusive Tax Shelters, Corporate Tax Fraud, Employment Tax Fraud, Estate Tax Fraud, IRS Whistleblower Office, Money Laundering Tax Fraud, Offshore Accouts Fraud, Tax Fraud, Uncategorized | No Comments »
