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August 2021
AGG’s Government Investigations Team Insights provides periodic updates covering legal and regulatory topics. Our team, which includes former federal prosecutors, SEC enforcement attorneys, and federal agency attorneys, has successfully represented companies and individuals, including executives of public companies, in numerous civil and criminal investigations, including before the U.S. Department of Justice and U.S. Attorney’s Offices, the SEC, the EPA, the FDA, the FTC, and many other federal and state agencies. We also assist our clients by conducting internal and parallel investigations, and advising them regarding the related issues that often follow government investigations, including civil litigation, media interest, and reputational concerns.
We are pleased to welcome a new member of AGG’s Government Investigations Team. David M. Blank has joined our Washington, D.C., office as a partner in the firm’s Healthcare and Litigation practices. He counsels individuals and entities through government investigations, advises on corporate compliance and governance matters, and litigates civil and criminal healthcare fraud matters. Prior to working in private practice, David served as senior counsel for more than a decade for the United States Department of Health and Human Services, Office of Inspector General (OIG).
In this edition, we discuss a recent Florida district court case involving prosecutorial misconduct resulting in a new trial, an SEC administrative case involving fraud allegations related to a SPAC, the Biden Administration’s efforts to pursue environmental justice through criminal enforcement of environmental laws, and continued antitrust criminal indictments of employers involving wage suppression.
FEATURED ARTICLES
USA v. Pisoni: Prosecutorial Misconduct in the Southern District of Florida
By: Aaron M. Danzig and Micah Kanters
On July 16, 2021, Judge Darrin P. Gayles of the Southern District of Florida indicated his intent to grant a new trial to three defendants, Matthew Pisoni, Marcus Pradel, and Victor Ramirez, based on his determination that Department of Justice (“DOJ”) attorneys knowingly engaged in prosecutorial misconduct by obtaining privileged documents and deliberately misleading the Court regarding their actions. Prosecutorial misconduct occurs when a prosecutor breaks a law or rule of professional ethics during the performance of their duties. While prosecutors have difficult and demanding jobs, and the vast majority are dedicated public servants, in this instance, the Court was not faced with accidental errors subsequently identified, acknowledged, and rectified, but rather apparently found intentional and egregious ethical violations. Such conduct by federal prosecutors obviously is of great concern for defendants, but it also is highly problematic for the entire criminal justice system, as it calls into question the very integrity of that system while undermining the validity of criminal convictions. Read More >
SEC as Enforcer of SPAC Mergers and Enabler of SPACs
By: Cory C. Kirchert and Adriaen M. Morse
On July 13, 2021, the Securities and Exchange Commission (“SEC”) brought a settled administrative proceeding alleging fraud against a special purpose acquisition company (“SPAC”) and its targeted acquisition and the individuals involved. The SPAC, named Stable Road Acquisition Company (“SRAC”), its targeted acquisition, Momentus, Inc. and SRC-NI Holdings, LLC, and SRAC’s chief executive officer (“CEO”), Brian Kabot, settled the SEC’s administrative claims. That same day, the SEC filed an unsettled complaint in the U.S. District Court of the District of Columbia (“complaint”) alleging fraud claims against Momentus’ founder and former CEO, Mikhail Kokorich. The following day, Momentus’ CEO, Kabot, left and the company named John Rood, a former Lockheed Martin and Raytheon executive, as its new CEO, effective August 1, 2021. Read More >
Pursuing Environmental Justice Through Criminal Enforcement
By: Brooke F. Dickerson
"Environmental Justice" is an effort intended to address the disproportionate adverse impacts of pollution on disadvantaged communities, primarily comprised of minorities and lower-income people. Environmental Justice ("EJ") has been a part of the United States’ official policy since the 1990s but the Biden Administration has now made Environmental Justice a priority in decision-making for all federal agencies. The Environmental Protection Agency ("EPA") defines Environmental Justice as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies." The Agency has issued numerous policies to advance the President’s goals, including increased funding to support EJ activities, increased civil enforcement activities in EJ communities, and increased criminal enforcement in communities overburdened by pollution. Read More >
A New Trend in Antitrust Enforcement: Wage Fixing and "No-Poach" Agreements
By: Jeffrey S. Jacobovitz and Micah Kanters
In October 2016, the Antitrust Division of the Department of Justice ("DOJ") and the Federal Trade Commission ("FTC") issued an eleven-page joint guidance document entitled "Antitrust Guidance for Human Resource Professionals" ("the Guidance"). Directed at human resource professionals, the Guidance reaffirmed the two antitrust agencies’ stance that antitrust laws apply with equal force to firms that compete to recruit and retain the same employees, irrespective of whether those firms compete in the same product or service market. In pertinent part, the Guidance asserted that “naked” agreements (i.e., facially anti-competitive agreements that lack pro-competitive justifications) between competitors in an employment market to fix wages or to not “poach” employees from one another constitute per se violations of the antitrust laws. Per se violations of the antitrust laws can be pursued criminally by the DOJ, and, recently, there has been a notable increase in this type of enforcement action. Read More >
GOVERNMENT INVESTIGATIONS TEAM CONTACTS
Aaron M. Danzig Partner, Atlanta 404.873.8504 aaron.danzig@agg.com         Sara M. Lord Partner, Washington, D.C. 202.677.4054 sara.lord@agg.com
The information presented provides a general summary and/or recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice.
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