Arent Fox Partner Linda Baumann Comments After DOJ Announcement of Increased Transparency in Criminal Prosecutions

In particular, DOJ plans to provide additional information on the basis for its corporate prosecutions, including the reasons behind DOJ’s decisions not to prosecute. 
 
“This is a priority of mine,” said Ms. Caldwell. “While these documents already provide significant insight into our thought processes, they will soon provide an even greater explanation of our analysis and conclusions.”

Ms. Baumann said that Ms. Caldwell’s comments on increased transparency are “especially interesting and promising” because they indicate that the government may soon be providing some of the guidance that has long been missing. Without this guidance, individuals and organizations’  abilities to fully comply with applicable law has been compromised. “Companies have been expected to regulate their conduct, often under very complex laws, with minimal specific, practical guidance,” said Ms. Baumann. To remedy this situation, Ms. Baumann suggested that the government “publish a health law counterpart to the FCPA [Foreign Corrupt Practices Act] Resource Guide, which has a section providing examples of actual cases where the government declined to prosecute.”
 
Ms. Baumann pointed out that while the speech was directed at various types of companies, “Ms. Caldwell’s remarks do apply to health care companies and individuals, [although] it’s important to bear in mind that she’s head of the DOJ Criminal Division and there tend to be fewer criminal cases involving health care fraud” since most health-care fraud cases arise under the civil False Claims Act and Stark law. Nevertheless, Ms Baumann noted, “there are criminal penalties for violation of the anti-kickback statute and certain other statutes that may be used in health care fraud cases and we’ve seen a few recent criminal prosecutions in the life sciences/FDA areas.”