ad use of such tactics would amount to nothing less than a game-changer, Ortiz noted. "But officials at HHS and the Department of Justice are increasingly vocal about the need to punish individual executives, even if extraordinary means are required," he said, "so that might well be what they have in mind." Indeed, the attorney noted, at the 21st Annual Institute on Health Care Fraud, a major symposium held in Miami Beach in mid-May, regulators were unambiguous about their intent to step up enforcement actions against individuals.
"In its initial crackdown on the likes of off-label marketing or violations of the Foreign Corrupt Practices Act, the government dramatically increased fines and penalties, such that damages totaling hundreds of millions or even billions of dollars are not uncommon today," said Washington, D.C.-based LeClairRyan shareholder Michael F. Ruggio. "When misconduct persisted despite these massive penalties, regulators sharpened their focus on indictments of individual corporate executives. However, proving such cases beyond a reasonable doubt can be difficult, and successful prosecutions are relatively rare. Thus, it is entirely possible that extrajudicial tactics could become more commonplace."
The government might use the disbarment provision to go after individual executives it suspects of turning a blind eye toward regulatory violations, maintaining lax internal controls and otherwise "setting the wrong tone at the top," Ortiz said. No forewarning would be required.
Once a clear pattern emerges regarding the intended use of the disbarment provision, regulated companies will need to work with their outside counsel to adjust their legal strategies as required, he advised. Before reaching a settlement agreement in a criminal case, for example, companies might secure written assurances that regulators will not try to use the disbarment provision later on.
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