Matthew Krueger Discusses DOJ's First Health Care Declination Under Revised Corporate Enforcement Policy

Foley & Lardner LLP partner Matthew Krueger commented on the U.S. Department of Justice’s (DOJ) decision to decline prosecution of a health care company in the Report on Medicare Compliance article, “DOJ Declines to Prosecute Company Under CEP, but Indicts Its Founder.”

In the article, Krueger discussed DOJ’s first health care-related declination under its revised Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP), noting that the DOJ “is trying to signal its commitment to giving a higher level of certainty to companies about what outcome will result if they voluntarily self-disclose misconduct.”

He cautioned that while DOJ will look favorably on companies that self-disclose, obtaining a declination is “always a gamble” and “those factors aren’t black and white.” He added that because prosecutors have discretion in how they apply the CEP the “DOJ will still make that assessment of aggravating circumstances.”

Krueger also highlighted their willingness to distinguish between corporate entities and the individuals accused of wrongdoing. “Companies are independent actors apart from their founders, board members and officers,” he said, emphasizing the importance of independent decision-making and separate representation for boards when corporate misconduct is under investigation.