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Qui Tam 2019 is the second annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses the coordination of parallel criminal and civil cases under the FCA with Jonathan Haray of DLA Piper, who'll be leading a panel on the topic on Day One of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on February 22, 2019.
Qui Tam 2019 Panel Preview: Parallel Civil and Criminal Investigations
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(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] We are here today with Jon Haray. Jon is a partner at DLA Piper, and we’re talking about a panel that he will be moderating at the Qui Tam Conference this year, on February 28 and March 1, 2019.
Jon, your panel is on parallel civil and criminal investigations. If there’s a criminal component in a case, how does that change a False Claims Act case for you as defense counsel?
Jonathan W. Haray: Well, it changes things quite a bit as a defense lawyer. It probably changes things just as much for relators’ counsel, and for every practitioner who’s involved — and that’s one of the things we want to talk about on this panel at the conference this year: What are the things you need to be thinking about when you’ve got a parallel civil/criminal False Claims Act investigation?
Oswald: So let’s just say that it’s a case where there is a parallel proceeding … and you find out [about] that criminal component. How does that normally happen?
Haray: That’s one of the things we want to talk about during the conference because, when you have a criminal investigation that’s going side-by-side with a civil False Claims Act investigation, you might see the government using traditional — old-school — law enforcement techniques.
So the defense, or the company that’s involved, might find out about this because they get a grand jury subpoena, which wouldn’t happen in a civil case obviously. You could find out because there’s a search warrant executed at a business, [again] something that wouldn’t happen in a civil case. And there’s a host of other ways that the government might act differently in a criminal case than what you’d expect to see in a traditional civil case.
Oswald: And if there’s both a criminal and civil component to the case, you might be dealing with two different Assistant United States Attorneys — one on the criminal side and one on the civil side?
Haray: Often that’s the case. Well, always that’s the case — because there’s a line between the civil and criminal components within the Department of Justice and with the other agencies that they deal with. So normally you would have a civil AUSA involved in a case, or counsel from an agency that’s involved in an investigation, and then you’d have a criminal Assistant U.S. Attorney, or a trial attorney from the Department of Justice that would be handing the criminal side of the investigation.
Oswald: Got it. And how does that dynamic change things? Is the criminal case in the forefront? Is the civil case taking a backseat? How does that work?
Haray: In my experience, if criminal prosecutors get involved in a case, that tends to take over the case in a lot of ways. For one thing, companies tend to view it as a much more serious case if a criminal investigation kicks off. Naturally the prosecutors who are handling the criminal side are going to take the lead when that happens, so that’s what I would expect to happen in a parallel investigation.
Oswald: Let’s talk about the end of a case where there’s both a civil and criminal component. When do you talk to your client about a global resolution? When does that make sense?
Haray: If your client is a company and you’re on the defense side of one of these cases, … you want it to be a global resolution. It doesn’t make much sense for most businesses to resolve part of a case and have the rest of the case be ongoing. If you’re going to resolve it, and enter some resolution with the government or with a relator, you want to get it all done at once.
Oswald: Got it. So I suspect on our panel at the Qui Tam Conference we might be hearing a little bit about global resolution. Give us a sense of some other things, if I’m sitting in the audience, that I can expect from your panel.
Haray: One of the things we want to talk about at the panel is — we want to look at a parallel civil and criminal False Claims Act investigation from the perspective of all sides. So we’re going to have relators’ counsel, we’ll have in-house counsel, we’ll have outside defense attorneys, and we’ll have a government attorney.
What we want to do is shed some light on what everybody is thinking, and what are the issues that they need to be focused on when they’re trying to, one, respond to an investigation but also [when] resolving a case. And if it’s a case that’s going to get resolved, how all those different players — what they need to expect from the process.
Oswald: So if, let’s say, I’m relators’ counsel, I’m going to get a good sense of the kind of things that defense counsel is dealing with at resolution, so that I can factor that into how I’m dealing with that case?
Haray: Right. For a relator, they need to understand some things that are going be in the mind of a defendant or a company. If they’re involved in the investigation, what are the issues that are important to the other side that they need to focus on? If there’s regulatory issues, if there’s a potential criminal investigation going on, everybody in the negotiation needs to know what the other side has on its plate.
Oswald: I just learned that we have something in common: We are both basketball coaches for our children. That must be fabulous. Tell us a little bit about that.
Haray: Well Scott, I’m a budding basketball coach. You’re an established basketball coach.
Oswald: [Laughing] I don’t know about that.
Haray: But it’s true: I’ve started trying to help with coaching my seven-year-old son’s basketball team, which has been a huge thrill for me — and hopefully not too embarrassing for him.
Oswald: Jon, thank you.
Haray: Thanks a lot.
Oswald: [Addressing camera] We look forward to seeing each of you at this year’s Qui Tam Conference. It’ll be on February 28 and March 1, 2019, here in Washington. You can register at fedbar.org/quitam19. We look forward to seeing you.