Steven Tyrrell, who is co-chair of Weil Gotshal’s white collar defense & investigations group, was chief of the Justice Department’s criminal Fraud Section from 2006 through 2009. He will represent the government in a mock negotiation staged by the American Conference Institute at its “Government Investigations for Life Sciences” conference in Philadelphia Sept. 27 and 28.
In the mock negotiation, Tyrrell will focus on Gotham’s potential criminal liability.
First, the prosecutors will want to know whether there is sufficient evidence to sustain a prosecution, as well as a compelling federal interest in pursuing the matter, Tyrrell says.
If the answers to both questions are yes, the prosecutor will consider whether or not some form of alternative disposition — a deferred prosecution agreement or a non-prosecution agreement — is appropriate. The government will consider the duration of any agreement and whether the company should be required to retain an independent monitor.
There will inevitably be wrangling over the amount of any fine.
Prosecutors are always thinking about the various moving parts, Tyrrell says: “If we give on this or that point, what does it mean” for the other terms the government hopes to negotiate?
In a complicated case like Gotham’s, with potential civil and criminal charges, prosecutors are going to look for theories that show the company profited from illegal conduct.
Tyrrell says he will push in the mock negotiation for hard numbers from the company.
“I’m going to be very interested in the amount of money the company has made in connection with the off-label marketing, and in the sales in the country [Russia] where there was bribery.”
Tyrrell says he will also press the company about whether there was knowledge of wrongdoing at high levels, and what the company has done to address its internal problems. Under the Justice Department’s corporate charging policy, top-level approval generally would make the conduct more serious in the eyes of the government.
“In this hypothetical, it appears that individuals in the company all the way up to the CEO level were aware of and participated in the off-label marketing scheme,” Tyrrell says.
On the potential FCPA charge, Tyrrell says he will probe for information about the company’s compliance program, including the nature and extent of the due diligence it performed before purchasing Etronext.
Finally, Tyrrell notes that in negotiations over any potential fine, the company’s proposed amount must be grounded in the framework set forth in Chapter 8 of the U.S. Sentencing Guidelines.
“In the view of the U.S., the company lawyer should have a rational basis for proposing his number,” Tyrrell said.
To read more about Tyrrell, click here for his Weil Gotshal 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.