Breeding Henry Baysan

What to expect when your company is under investigation

According to any meaningful measure, federal corporate investigations, indictments, and settlements are on the rise. For example, the Office of Foreign Asset Control (OFAC), which is responsible for enforcing U.S. sanctions laws, settled nearly four times as many cases in 2019 compared with 2018. In 2019, OFAC's settlement totaled almost 1.3 billion USD.

OFAC, however, is just one agency. A disconcertingly large number of federal agencies can investigate corporate actions. Some other agencies are the Federal Bureau of Investigations (FBI), Drug Enforcement Agency (DEA), Bureau of Alcohol, Tobacco, and Firearms (ATF), Homeland Security Investigations (HSI), and Securities Exchange Commission (SEC), just to name a few.

Once one or more of these agencies believes an agent of your company committed a crime, it will likely request a subpoena from a federal magistrate or a grand jury. If they can show probable cause that a crime was committed, the subpoena will be issued. Once the subpoena is served on the company, the company will be obligated to provide the requested records, which can include bank documents, accounting records, communications, computer databases, emails, and a nearly infinite number of documents that the government believes will assist its investigation. There are defenses to these subpoenas, but it is critical that your company acts quickly to assess the viability of quashing the subpoena.

These same subpoenas may also be used to compel the testimony of an uncooperative individual. Often, the genesis of an investigation is a tip from an employee or agent of the company. The government, however, will likely want to corroborate this information with interviews of other witnesses. The government may also bolster the strength of the subpoena by offering immunity to the individual if the individual was suspected of improper conduct. Individuals who are uninterested in such interviews, have additional defenses.

As a company, once it is clear that an investigation has started, it is important to act quickly. You will want to carefully review the requested information, assess the scope of the alleged issue, and determine what can be done to lessen the burden of the government's requests. Speaking with an experienced white collar criminal and federal criminal defense attorney is paramount in reaching the right decisions.

While the natural response may be to stonewall and vigorously oppose the sharing of any information-after all, anything you say can and will be used against you in a court of law-strategic cooperation may be the best course for securing a favorable outcome. Most manuals guiding federal prosecutors and other governmental agencies provide that cooperation is a critical mitigating factor. This is particularly true for corporate entities, as the Department of Justice has previously stated that cooperation is a necessary element for receiving any type of mitigating credit.

To be sure, the decision to fight an investigative subpoena or cooperate in the government's investigation is a momentous decision. The right choice depends on a number of factors, including things like current federal enforcement policies and the proclivities of the specific investigating agency or division. Thus, it is important to have an experienced white collar criminal and federal criminal defense attorney to guide you through the process.

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