At the outset of any investigation, counsel will want to know if the client is a witness, a subject or a target of the investigation.  And counsel will usually receive offer one of three responses, identifying the client as one of the three.  How the client is classified will typically dictate how the client and counsel interact with prosecutors and investigating agents. First, the “witness.”  A witness is a person who may have information that the government considers important to its investigation.  It does not mean that a crime was actually seen or witnessed and typicall ..read more

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On May 19, 2020, the White House unveiled Trump’s executive order (“EO”) that instructs federal agencies to consider the economic effects of the current pandemic in undertaking enforcement and regulatory compliance.  The EO means that the USEPA will, more than likely, revise its recent March 26 general guidance related to enforcement during the pandemic. The EO directs agencies to promote “regulatory relief” during gradual reopening of the economy.  Specifically:  The EO directs agencies to exercise “appropriate temporary enforcement discretion or appropriate temporary extensio ..read more

The enforcement activities by the USEPA have declined in a significant way, under the current administration.  Look no further than the USEPA Inspector General’s report  “EPA’s Compliance Monitoring Activities, Enforcement Actions, and Enforcement Results Generally Declined from Fiscal Years 2006 Through 2018” (Report No. 20-P-013) (“Enforcement and Compliance Report”).  And this comes on the heels of the USEPA announcing plans to “exercise discretion” in the face of COVID-19.  The announcement has been met with mixed responses; some have welcomed the policy statement while ..read more

Nike began an internal investigation in 2017 into allegations that some of its executives had made illegal payments to athletes. The internal investigation went on for over one year.  Then in March 2019, “celebrity” lawyer Michael Avenatti raised the allegations to Nike while allegedly trying to extort millions of dollars from Nike presenting text messages, e-mails and other evidence of the illegal payments.   Avenatti is now on trial for the extortion allegations. During the trial the DLA Piper lawyer for Nike that conducted the internal investigation, testified that the internal investigatio ..read more

Enforcement by the USEPA is down by just about any metric measuring the enforcement of environmental laws. This has left an enforcement void.  But that void is being partially filled.  Environmental groups and enterprising plaintiffs’ firms are now using the citizen suit provisions of the Clean Water Act as a business model. And it seems that California is leading the way.  Numerous sixty-day notices have been served on businesses.  In one instance, the requested damages of $200,000,000.00 are being sought. See Lunsford v. Arrowhead Brass Plumbing (No. 16-cv-08373, N.D. CA).  The Clean Water A ..read more