Kirk Ogrosky is a partner at Arnold & Porter LLP where he defends corporations and executives in criminal and civil health care fraud cases and investigations.  During the mock negotiation at the American Conference Institute’s “Government Investigations for Life Sciences” conference ^[1] in Philadelphia on Sept. 28, Ogrosky will represent fictional Gotham Science.

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Kirk Ogrosky

In real cases, Ogrosky says his first step is always to immerse himself in the details of the company’s business and the case. “The key for me is learning the facts and knowing the case better than anyone else,” Ogrosky says. “Not because it allows me to do better talking, but because it allows me to do better listening.”

Ogrosky also says he will try to find out how much the government knows and where they are focused without causing the prosecutors to focus on new issues.

“In the worst case scenario, the government indicts the company and its officers; best case scenario it drops the investigation after finding no wrongdoing,” Ogrosky says.

“Any criminal wrongdoing – the government knows that’s a winner for them,” Ogrosky says. “Priority number one has to be avoiding criminal charges.” A corporate guilty plea in a criminal case can result in a company being excluded from government health care programs – a potential “death sentence,” Ogrosky says.

In the hypothetical case study, Gotham Sciences faces two main potential criminal issues — potential allegations of Foreign Corrupt Practices Act and off-label promotion violations– as well as a civil qui tam False Claims Act lawsuit and a civil Securities and Exchange Commission probe.

“Obviously, the company wants the government to go away and leave them alone,” Ogrosky says. But a good outside counsel will have a strategy, which includes prioritizing the investigative issues for the company.

Those priorities include keeping the Philadelphia U.S. Attorney’s office from opening a criminal investigation into the off-label marketing of Glucomex and keeping lines of communication open with the government about the qui tam False Claims Act case, Ogrosky says.

The company will also have to conduct a thorough internal investigation of the FCPA matter, which involves gifts provided to doctors at Russian state-run hospitals by sales representatives of a recently acquired medical device manufacturing subsidiary.
“Were those gifts given to incentivize sales?  Did the company discover the matter in its due diligence” before acquiring the medical device manufacturer? The company needs that information before entering into negotiations with the government,” Ogrosky says.

And the company can’t ignore the possibility of a SEC’s probe. “What is the SEC looking at? You’ve got to figure that out quickly,” he says.

Ogrosky will represent the company in the mock negotiation alongside his former Department of Justice colleague Jay Darden, who left the criminal Fraud Section at DOJ earlier this year to become a partner at Patton Boggs LLP.

“Jay and I worked together for several years never losing a case.  We had dozens of matters together including four lengthy jury trials. Our styles work well together. I’m all business, blunt and direct,” Ogrosky says. “Jay is congenial, affable and has a way of soft-selling things that I don’t do well.  For example, I might come in and say, ‘I’ve conducted the investigation and here’s the company’s position. Jay might come in and spend 20 minutes shaking hands and talking about barbeque.  At the end of the day, you need both skills to reach the best deal.”

Ogrosky was a deputy chief of the Justice Department’s criminal Fraud Section from 2006 to 2010, Ogrosky supervised health care fraud cases and investigations. His duties included coordinating with the FBI, U.S. Attorney’s offices, the Department of Health and Human Services Office of Inspector General, and the FDA.

To read more about Ogrosky, click here ^[3] for his Arnold & Porter biography.

The American Conference Institute’s “Government Investigations for Life Sciences” conference will take place at the Union League in Philadelphia on Sept. 27 and 28. The mock negotiation begins at 9:30 a.m. on Sept. 28. To learn more, click here. ^[1]