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Law360 (March 19, 2020, 2:05 PM EDT) --
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| Andrea Gordon |
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| Sarah Paul |
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| Lewis Wiener |
The DOJ acts in several roles, including as a part of law enforcement, as an executive agency overseeing the Federal Bureau of Prisons and as an employer.
Over the past week and a half, the following noteworthy developments took place at the DOJ with respect to each of these roles, and more are sure to come.
First, on March 9, the DOJ joined international regulators, such as the U.K. Competition and Markets Authority, in warning the business community that anyone attempting to capitalize on consumer anxiety related to COVID-19 would be held accountable.
Attorney General William Barr, in a DOJ press release, asserted that the DOJ:
stands ready to make sure that bad actors do not take advantage of emergency response efforts, healthcare providers, or the American people during this crucial time.[1]
The DOJ emphasized that it will not hesitate to criminally prosecute individuals or companies that fix prices or rig bids for personal health protection equipment, such as sterile gloves and face masks, or competitors who agree to allocate among themselves consumers of public health products.
The DOJ also indicated that its new Procurement Collusion Strike Force, an interagency partnership formed in November to focus on deterring, detecting, investigating and prosecuting antitrust crimes in government procurement, grant and program funding, would be on high alert for collusive practices in the sale of such products to federal, state and local agencies.
Companies are already encountering challenges related to price gouging as consumers prepare for potential quarantines by stocking up on products, such as hand sanitizer, face masks, antibacterial products and even toilet paper in stores and through online marketplaces. Online marketplaces have reportedly been pulling thousands of coronavirus-themed products from their websites to prevent sellers from exploiting the outbreak to mislead customers about their products or increase prices.
The DOJ's stern warning that it intends to prosecute bad actors seems indicative of a desire to provide a strong law enforcement response to the global health crisis that we face. The DOJ was harshly criticized for its failure to prosecute individuals, including top Wall Street executives, for their role in the 2008 financial crisis.
There were federal judges and members of Congress who questioned the DOJ's decision to enter into deferred prosecution agreements with companies instead of holding individuals criminally accountable. The DOJ now appears determined not to let history repeat itself and, instead, is being vocal about its intention to prosecute individuals and companies who exploit consumers and COVID-19 anxiety.
Second, on March 12, the chairman of the House Judiciary Committee sent a letter to Barr, requesting information concerning the DOJ's handling of COVID-19 and the health and safety of those in federal prisons.[2] The letter inquired, among other things, as to whether the DOJ had given any direction or guidance to the BOP or the U.S. Marshals Service for dealing with COVID-19 and whether any precautionary measures had been taken, such as implementing special protocols for attorney and family visits.
The letter suggested that the DOJ should consider directing U.S. Attorney's Offices, wherever possible, to not seek the detention of individuals at their initial appearance in court, decline prosecuting minor, nonviolent offenses and decline pursuing supervised release and probation revocations that involve technical and minor violations.
On March 13, the BOP announced that, after consulting with the DOJ and the administration, it would take additional measures to protect against the spread of COVID-9. These measures include the immediate suspension of social visits and the limitation of legal visits for 30 days. The BOP also suspended staff travel and trainings and movement of inmates and implemented screening programs for inmates and staff.
However, it remains to be seen how the DOJ will address the letter's other concerns and whether, for instance, U.S. Attorney's Offices will be more amenable to bail requests from individuals who have been arrested.
In recent days, defense attorneys have also been taking action to try to mitigate the spread and risks of COVID-19 infection to federal inmates, as well as to guards and other justice system personnel. Some practitioners are invoking the First Step Act's compassionate release provision and the Bail Reform Act's temporary release provision to petition for the early release of federal inmates classified by the Centers for Disease Control and Prevention as high risk for COVID-19 infection.
Defense attorneys, moreover, are arguing for pretrial release, home confinement and delayed surrender dates on behalf of their clients. The DOJ has not yet indicated whether it is amenable to taking measures to — at least in the short term — reduce the number of federal inmates. Many people will be watching for a response from the DOJ that fairly balances law enforcement concerns with the safety concerns presented by this crisis.
Third, the DOJ has been providing information as to the effect of COVID-19 on its own personnel and operations. For instance, on March 13, a DOJ trial attorney sent a letter to the U.S. Court of Appeals for the Fourth Circuit, in which the attorney stated that persons in the DOJ's Civil Division office in Washington, D.C. had "exhibited symptoms consistent with COVID-19 and have sought medical attention."[3]
The letter corrected a prior letter to the court regarding the scheduling of oral arguments, sent on March 11, which had stated, inaccurately, that the DOJ had discovered that attorneys in the office had tested positive for coronavirus.
The administration of President Donald Trump has reportedly been preparing a plan that will allow hundreds of thousands of federal employees to work remotely. If the DOJ, prompted by concerns about the spread of COVID-19 in its offices, begins to require its attorneys to telework on a regular basis, that may well affect the pace and the nature of the cases pursued by the DOJ in the near term.
During the 2018 and 2019 government shutdowns, many government attorneys could not work at all, which slowed the progress of ongoing cases and delayed the start of new cases. Here, across-the-board teleworking could cause a decrease in efficiency and resources, resulting in a similar slowdown and causing the DOJ to make difficult choices about which cases it pursues and which it does not.
On March 17, for instance, the DOJ's Antitrust Division announced a series of temporary changes to its civil merger investigation processes, which will remain in place during the pendency of the COVID-19 event. These changes include a request from the Antitrust Division for an additional 30 days to complete its review of transactions after the parties have complied with document requests and a plan to conduct all meetings by phone or video conference, where possible.
The changes announced by the Antitrust Division forecast the types of changes the DOJ may need to make in its other divisions. For instance, investigations conducted by DOJ's Criminal Division routinely involve knocking on doors and conducting in-person interviews. As calls for social distancing and mandatory shutdowns increase, the DOJ will need to find a way to adapt its investigations to the new constraints that it faces. As that occurs, we may see the DOJ employing new investigative techniques and taking more creative approaches.
These developments may be only the beginning. Keeping track of how the DOJ is reacting to COVID-19 will be important, because the DOJ's reactions to COVID-19 will likely affect companies and individuals worldwide.
Andrea Gordon is an associate, Sarah Paul is a partner, and Lewis Wiener is a partner and co-chair of global financial services disputes and investigations at Eversheds Sutherland.
The authors would like to thank Eversheds Sutherland partners Ronald Zdrojeski, Bruce Bettigole, Olga Greenberg and Meghana Shah for their contributions to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] "Justice Department Cautions Business Community Against Violating Antitrust Laws in the Manufacturing, Distribution, and Sale of Public Health Products," U.S. Department of Justice (Mar. 9, 2020), https://www.justice.gov/opa/pr/justice-department-cautions-business-community-against-violating-antitrust-laws-manufacturing.
[2] Letter from Jerrold Nadler, Chairman, U.S. House of Representatives Committee on the Judiciary, to The Honorable William P. Barr, Attorney General, U.S. Department of Justice (Mar. 12, 2020), https://judiciary.house.gov/uploadedfiles/2020-03-12_letter_to_ag_barr_re_covid-19.pdf.
[3] Letter of Correction re Outdoor Amusement Bus. Ass'n, Inc. v. DHS, No. 18-2370 from Joshua S. Press, Trial Attorney, U.S. Department of Justice, to Patricia S. Connor, U.S. Court of Appeals for the Fourth Circuit (filed Mar. 13, 2020), https://assets.documentcloud.org/documents/6809916/Doj-Letter-Friday.pdf.
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