Gerson, Van Demark Article on the FCPA and the Health Care Sector

Westlaw Journal Pharmaceutical/Medical Devices

Stuart Gerson and Dale Van Demark, both Members of the Firm in the Health Care and Life Sciences practice in the Washington, D.C., office wrote an article titled "The FCPA and the Health Care Sector: Entering an Era of Heightened and Unprecedented Enforcement."

Here is an excerpt:

Throwing down the gauntlet to health care providers, and most significantly, their executives who increasingly are doing business overseas, Acting Deputy Attorney General Gary G. Grinder recently told the National Institute on Healthcare Fraud that: "In some foreign countries, nearly every aspect of the approval, manufacture,

import, export, pricing, sale and marketing of a drug product may involve a 'foreign official' within the meaning of the Foreign Corrupt Practices Act. ... [The Department of Justice] will not hesitate to charge [health care] companies and their senior executives under the FCPA if warranted to root out foreign bribery in the industry."

Grinder's words reiterate what has become increasingly obvious to those members of the health sector who have been tracking the Department of Justice and Securities and Exchange Commission's movements over the last half decade. The government has brought more actions under the FCPA in the last five years than in the previous 28 years of the act's existence.

Last year, for the fifth year in a row, the number of FCPA-enforcement actions brought by the DOJ and SEC increased and the trend of increased enforcement shows no signs of letting up. These agencies have taken a broad and expansive reading of the operative terms in the FCPA and both continue to expand their enforcement theories, resulting in new prosecutions of both companies and individuals.