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THE LATEST ON GOVERNMENT INQUIRIES AND ENFORCEMENT ACTIONS

Government Investigations and White Collar Litigation Group

Brandon M. Santos

Photo of Brandon M. Santos Brandon’s practice focuses on advising and defending corporate and individual clients facing regulatory, administrative and criminal investigations. He has advised clients in a wide variety of matters including allegations of healthcare fraud, bank fraud, financial fraud, accounting fraud, import and customs violations, false claims, and the Foreign Corrupt Practices Act (FCPA). Part of his practice focuses on conducting internal corporate investigations.

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AI Risk and Whistleblower Protection Spotlighted in DOJ’s Revised Corporate Compliance Guidance

By V. Kathleen Dougherty, Brandon M. Santos, Garen S. Marshall, Elizabeth F. Tyler and Brenna Molinare on Compliance
On September 23, 2024, the U.S. Department of Justice (DOJ) updated its Evaluation of Corporate Compliance Programs (ECCP) guidance. The ECCP provides prosecutors with questions and factors to consider when assessing a company’s compliance program. Prosecutors use the guidance to assist in making decisions about whether to charge a company and how to resolve cases. The… Continue Reading

Deputy Attorney General Monaco Announces New DOJ Whistleblower Program

By Elissa Baur, John Adams, Brandon M. Santos, Casey Erin Lucier and Rebecca Watson on Enforcement and Prosecution Policy and Trends
On March 7, 2024, U.S. Deputy Attorney General Lisa Monaco gave remarks at the American Bar Association’s 39th National Institute on White Collar Crime in San Francisco, California. Monaco provided updates on the U.S. Department of Justice’s (DOJ or the Department) corporate criminal enforcement efforts and announced a handful of new Department initiatives, including a… Continue Reading

“There are Cops on the Beat”: DOJ’s Procurement Collusion Strike Force Leader Emphasizes Criminal Antitrust as Top Enforcement Priority

By Amy Manning, J. Brent Justus, Holden Brooks, Angelo Russo, Todd R. Steggerda, Abram J. Pafford, Jack White, Edwin O. Childs, Laura Colombell Marshall, Brandon M. Santos, Casey Erin Lucier, Paul T. Atkinson, Evan Tucker, Colin Brady and Jordan LaPointe on Compliance
On September 14, 2023, Daniel W. Glad — Director of the Procurement Collusion Strike Force (“Strike Force”) for the Department of Justice’s (“DOJ”) Antitrust Division — gave remarks as the keynote speaker for the Virginia Bar Association’s Annual White-Collar Fall Forum, emphasizing a renewed commitment to pursuing criminal investigations in the federal procurement arena.  DOJ… Continue Reading

DOJ Announces “Pilot Program Regarding Compensation Incentives and Clawbacks” with Significant Ramifications for Corporations Facing Criminal Investigations

By John S. Moran, Brandon M. Santos, Casey Erin Lucier, Jeffrey M. Hanna, Caroline Schmidt Burton and McGuireWoods LLP on Enforcement and Prosecution Policy and Trends
The Department of Justice Criminal Division announced a “Pilot Program Regarding Compensation Incentives and Clawbacks” (the “Program”) this week with broad implications for corporations and their individual executives operating within the Department’s jurisdiction. During two keynote speeches delivered at the American Bar Association’s National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco (remarks… Continue Reading

New Incentives Added to the Criminal Division’s Corporate Enforcement Policy

By Benjamin A. O'Neil, Brandon M. Santos, Casey Erin Lucier and Andrew Thornton-Dibb on Enforcement and Prosecution Policy and Trends
UPDATE: U.S. Attorneys’ Offices Adopt Policy Incentivizing Self-Disclosure of Corporate Misconduct (Feb. 27, 2023) On January 17, 2023, Assistant Attorney General (AAG) Kenneth A. Polite, Jr. delivered remarks to an audience at the Georgetown University Law Center, announcing changes to the Criminal Division’s Corporate Enforcement Policy (CEP). These changes to the CEP follow the September… Continue Reading

California Signs New Bill Prohibiting CA-based Tech Companies from Disclosing Data for State Abortion Investigations

By Brandon M. Santos, Kevin B. Frankel, Ayana Brown and McGuireWoods LLP on Enforcement and Prosecution Policy and Trends
Compliance with out of state investigative requests, like warrants, just got a little trickier for California companies. Under existing law, California technology and communications companies are required to produce specified user data in response to an out of state warrant as if that warrant was issued by a California court. But now there is one… Continue Reading

Update: Pain Management or Pill Mill? Supreme Court Hears Arguments Regarding Standards for Prosecutions of Practitioners Prescribing Narcotics

By Brandon M. Santos, Paul T. Atkinson and McGuireWoods LLP on Enforcement and Prosecution Policy and Trends
Last week, the Supreme Court (Court) heard oral arguments in companion cases Ruan v. United States and Kahn v. United States, concerning the application of the Controlled Substances Act (“CSA” or “the Act”) to medical practitioners. Through these cases, the Court is expected to resolve a circuit split over the role of “good faith” as… Continue Reading

Pain Management or Pill Mill? Supreme Court to Weigh in on Standards for Prosecutions of Practitioners Prescribing Narcotics

By Brandon M. Santos, Paul T. Atkinson and McGuireWoods LLP on Enforcement and Prosecution Policy and Trends
Update: Pain Management or Pill Mill? Supreme Court Hears Arguments Regarding Standards for Prosecutions of Practitioners Prescribing Narcotics (March 11, 2022) Introduction Next week, the Supreme Court will hear oral argument in a pair of cases that may reshape the landscape of legitimate prescribing under the Controlled Substances Act (“CSA” or “the Act”). In companion… Continue Reading

Supreme Court to Resolve CFAA Circuit Split

By Brandon M. Santos and Paul T. Atkinson on Fraud, Deception and False Claims
Following an FBI sting, police sergeant Nathan Van Buren was convicted under the federal Computer Fraud and Abuse Act (“CFAA”) for selling license plate information obtained from a police database. The Eleventh Circuit upheld his conviction. In April, the Supreme Court granted certiorari in Van Buren v. United States, No. 19-783, to address a circuit… Continue Reading

DOJ Loosens Yates Memo Requirements For Corporate Cooperation Credit

By Brandon M. Santos on Enforcement and Prosecution Policy and Trends
Yesterday, Deputy Attorney General Rod Rosenstein announced a series of changes to Department of Justice (DOJ) policy that clarified DOJ’s expectations for cooperation in investigations of corporate wrongdoing. The changes are sensible and should be welcomed by the business community as an improvement over the prior policy, commonly known as the Yates Memo. As Rosenstein… Continue Reading

CFPB Again Challenges Meaningful Attorney Involvement

By Brandon M. Santos on Financial Institution Regulation
The Consumer Financial Protection Bureau (CFPB) has entered into its latest consent order targeting consumer debt collection law firms.  Once again, the CFPB challenges the lack of “meaningful attorney involvement” it deems required in collection actions. This latest consent order was entered into by two Oklahoma medical debt collection law firms and their president (“Respondents”). … Continue Reading

House Financial Services Committee Takes Aim at the CFPB

By Brandon M. Santos and Government Investigations Group on Financial Institution Regulation
While the CFPB has been busy revamping debt collection rules, including those required by the Fair Debt Collection Practices Act (FDCPA), lawmakers are doing a bit of revamping of their own.  Earlier this month, the Financial CHOICE Act passed the House Financial Services Committee by a vote of 30-26. Largely intended to repeal certain aspects… Continue Reading

HIGH COURT ADOPTS OUT-OF-DISTRICT ELECTRONIC SEARCHES

By Brandon M. Santos on Enforcement and Prosecution Policy and Trends
By letter to House Speaker Paul Ryan on April 28, 2016, the Supreme Court adopted two significant amendments to Rule 41 of the Federal Rules of Criminal Procedure–the rule governing search and seizure.  The amendments, if enacted, expand a federal magistrate’s jurisdiction to issue warrants for remote search and seizure of electronic records located outside… Continue Reading

The House Has Voted: Auto Lenders Prevail Over CFPB

By Brandon M. Santos and Jodie Herrmann Lawson on Enforcement and Prosecution Policy and Trends, Financial Institution Regulation
As we predicted, auto lenders scored a significant victory last week in opposing the Consumer Financial Protection Bureau’s (CFPB’s) efforts to regulate the auto financing industry.  House Resolution 1737, The Reforming CFPB Indirect Auto Financing Guidance Act, passed the House with bipartisan support in a vote of 332-96. To recap, the bill challenges the CFPB’s… Continue Reading

House Bills Tackle Overcriminalization

By Brandon M. Santos and Government Investigations Group on Enforcement and Prosecution Policy and Trends
Last week, members of the House Judiciary Committee introduced a package of bills aimed at criminal justice reform. The proposed legislation responds to a groundswell of opposition to a perceived overcriminalization of business activities. Critics have cried for reform and uniformly support reinforcing traditional intent requirements necessary to secure a criminal conviction. The Criminal Code… Continue Reading

Supreme Court Strikes Down Warrantless Searches of Hotel Guest Registries

By Brandon M. Santos on Compliance, Enforcement and Prosecution Policy and Trends
Hotels possess a treasure trove of private information about their guests. Everything from the guest’s name, address, credit card and vehicle information to the number of guests in the party, arrival and departure dates and the amount paid for the stay. Needless to say, that data can be extremely useful to law enforcement. Indeed, many… Continue Reading

Agency Cooperation in Fair Lending Enforcement

By Brandon M. Santos and Jodie Herrmann Lawson on Financial Institution Regulation
Joint investigations, cross-agency partnership, cooperation … terms all too familiar to regulatory and defense practitioners accustomed to collaboration among the alphabet soup of federal regulators. These terms may now be regularly used to describe the emergent relationship between the Department of Justice (DOJ) and the Consumer Financial Protection Bureau (CFPB). Indeed, the Attorney General’s 2014… Continue Reading

New York, Zombie Debt and the CFPB

By Brandon M. Santos on Financial Institution Regulation
Earlier this month, New York adopted enhanced consumer debt collection regulations proposed by the New York State Department of Financial Services (NYDFS). The regulations, among other things, require debt collectors to provide consumers additional disclosures, entitle consumers to more information about the money they owe and make it more difficult to collect on time-barred or… Continue Reading

Not Every Payment to a Foreign Official is a Bribe

By Brandon M. Santos on Anti-Bribery and Corruption, Enforcement and Prosecution Policy and Trends
On those rare occasions in which a U.S. business is confronted with the possibility of making a payment to a foreign official that is unrelated to the official’s government service, there is an understandable temptation to reject the payment and run in the opposite direction. In some cases, however, that is a very unattractive option.… Continue Reading

DPAs, NPAs and the Hybrid Corporate Monitor

By Brandon M. Santos on Anti-Bribery and Corruption, Compliance, Enforcement and Prosecution Policy and Trends
In the relatively short but significant history of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), imposition of an independent monitor has typically been an all-or-nothing proposition. A monitor was either required for the entire term of the agreement (usually three years), or a monitor was not required at all. Recent enforcement actions, however, signal… Continue Reading

Guilt by Silence: Anything You Say (or Don’t Say) Can and Will be Used Against You

By Brandon M. Santos on Enforcement and Prosecution Policy and Trends
Does a suspect’s silence in response to investigators’ noncustodial questions trigger the Fifth Amendment privilege against self-incrimination? The answer is no according to the U.S. Supreme Court’s 5-4 decision Monday in Salinas v. Texas, No. 12-246, slip. op. 570 U.S. (June 17, 2013). Justice Samuel Alito, authoring the Court’s plurality opinion, held that criminal suspects… Continue Reading

Extractive Industry Continues to be a Focus of Anticorruption Enforcement

By Brandon M. Santos on Anti-Bribery and Corruption, Enforcement and Prosecution Policy and Trends, Securities and Commodities
Companies and practitioners alike can keep the mining, drilling and extractive industry on the hot list for bribery and corruption enforcement. Earlier this week, Houston-based Parker Drilling Company entered into a deferred prosecution agreement with the U.S. Department of Justice and the U.S. Securities and Exchange Commission to settle allegations that the company violated the… Continue Reading

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