On June 24, 2022, the United States Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, quashing Roe v. Wade, the landmark 1973 decision that established the constitutional right to abortion. Today, companies that operate in states where abortions are banned or restricted face a quagmire of laws and enforcement risks. Furthermore, the risk landscape is not static, but rather evolving, as the federal government (agencies such as the US Department of Justice and the US Department of Health and Human Services) and a myriad of States introduce new laws and issue guidance on a near-daily basis.
Across the United States, companies of all sizes, in a variety of industries, not limited to healthcare, are wondering how to manage application risk in a post-Roe world. Indeed, large companies, such as Apple, Meta, Yelp, Disney, Uber and Netflix, which operate nationally have announced that they will pay transportation costs for employees who need abortions but who cannot access this care in the states in which they reside. Healthcare provider organizations are struggling to understand the new restrictions that impact the services they can provide and under what circumstances those services can be provided. And the uncertainty is further complicated since, in response to Dobbs, several states have enacted laws that prohibit aiding and abetting a violation of state laws restricting abortion services.
In light of these rapid changes regarding access to abortion, law enforcement will likely intensify as state prosecutors or private plaintiffs empowered under the laws of various states exercise their power. enforcement under these laws. In-house attorneys and corporate executives concerned about the law enforcement risks arising from the Dobbs decision may want to consider two important preliminary issues when faced with a subpoena, request for documents, or a government investigation: (1) is the company under criminal investigation, and if so, (2) what should I do?
Is the company under investigation?
There are a range of possible warning signs that your business is under criminal investigation – some are obvious, some are not. Here are the signs listed in order from most obvious to most subtle:
Law enforcement is executing a search warrant at your business, or at a facility or home associated with an employee, former employee, or business partner.
It is a sure sign that your business is under criminal investigation if officers execute a search warrant at your business offices or facilities. What is less obvious is when search warrants are executed at homes or other locations related to your employees, former employees or business partners. In the digital age, law enforcement agencies execute many search warrants to obtain data (such as emails) about the service provider (such as Google) without notifying the actual target. However, if you learn of a search at a location other than your company’s offices, you may be able to determine whether the investigation involves your business by reading the search warrant, which officers are required to leave on the place of the search.
The company, an employee or a former employee receives a “target letter” related to the activities of the company.
A target letter is a letter from a prosecutor informing the recipient that they are the “target” of a grand jury investigation. Such a letter informs the target that the government intends to charge them with a crime, but before indicting them, the person has the opportunity to voluntarily testify before the grand jury to tell their “side of the story.” “. Assuming that the subject matter of the inquiry (which is usually described generically in the target letter) relates to the activities or benefits of the company, the receipt of such a target letter is a strong indication that the company is under investigation.
A law enforcement officer attempts to speak to your employees, former employees, or business partners of your company.
This activity is a likely sign that your business is under investigation. As in-house counsel or a member of company management, you may learn that your current employees have been approached by agents (assuming employees do not comply with a common request from agents to keep the interview confidential). However, you may or may not learn that your former employees or business partners have been approached. Typically, agents won’t approach people at your company’s headquarters, but rather at their homes or other locations.
It may not be obvious whether the officer is investigating a criminal or civil offense. You, as in-house counsel or corporate officer, should be prudent in assuming that the investigation is or will become criminal. Investigations that begin with a civilian nature can quickly “turn criminal,” and evidence obtained in civilian investigations can easily be shared with criminal agents and prosecutors.
Your company receives a grand jury subpoena for documents related to benefits, programs, policies, governance or general company operations, or a specific employee.
Depending on the nature of the documents requested, this could be a sign that your company is under investigation. On the other hand, your business could simply be a third-party document custodian with no independent exposure. Depending on the type of subpoena, the investigation may be criminal or civil.
The company is under investigation. What must I do now ?
If any of these events occur, your business may be subject to a criminal investigation.
By heeding the warning signs that your business may be under investigation, as outlined above, you will be better equipped should any of these events occur. If a subpoena, request for documents or government investigation is received, speed is essential. Seek the assistance of an experienced criminal defense attorney as soon as possible, and ideally before responding to any law enforcement request. Trying to handle a criminal investigation with attorneys who have no criminal law training often leads to missteps that, unfortunately, usually cannot be undone. Taking the right steps when you learn or suspect that a criminal investigation is underway can make all the difference in protecting the organization, its employees and its leaders.
©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 195