Photo of Matt Schelp

A former federal prosecutor, Matt concentrates his practice in the areas of compliance, internal investigations, tax, whistleblower defense, white collar defense, Foreign Corrupt Practices Act (FCPA), securities enforcement and business litigation. He leads the firm’s Government Compliance, Investigations & Litigation practice group.

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (DTSA), which amended the Economic Espionage Act of 1996 to create a federal civil remedy for trade secret misappropriation. The DTSA governs misappropriations occurring after the effective date of May 11, 2016.

Although trade secret theft has been a federal crime since 1996, civil claims for trade secret misappropriation were almost always governed by state law. A corporation unable to establish a basis for federal jurisdiction was thus limited to state court. Although every state but two has adopted a variation of the Uniform Trade Secrets Act, these statutory variations and differing court interpretations created uncertainty in the application of trade secret law, an area of growing importance for companies increasingly dependent on electronic security.

On December 17, 2015, the U.S. Department of Justice (DOJ) announced that its Environmental and Natural Resources Division (ENRD) will increase efforts to work with the U.S. Department of Labor (DOL) to investigate and prosecute crimes related to workplace violations. According to the DOJ’s Deputy Attorney General Sally Quillian Yates, “On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” As such, Ms. Yates said the DOJ is “redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”

On December 4, 2015, President Obama signed legislation authorizing the federal government to revoke, deny, or limit passports for individuals with a “seriously delinquent tax debt.” The law defines “seriously delinquent tax debt” as owing the IRS more than $50,000 in tax, penalties, and interest. The measure, slipped into the enormous–more than 1,300 pages–highway funding bill [Fixing America’s Surface Transportation Act (“Fast Act”)], gives the State Department the authority to revoke, deny or limit passports for anyone the IRS certifies as owing more than $50,000 in tax debt. Taxpayers with current installment agreements with the IRS, whereby they have agreed to pay their tax debt over time, are exempted from the law.

Corporations conducting internal investigations need to be wary that information learned and materials generated in the course of these investigations may later fall into the hands of adversaries in litigation.

A recent decision by a federal district court, United States ex rel. Barko v. Halliburton Co., 4 F.Supp.3d 161 (D.D.C., 2014)., demonstrates this pitfall.