Corporate Investigations

Corporate Investigations

Working with private and public companies based both in the United States and abroad, we assist our clients with the complexities of responding to and defending governmental investigations involving criminal, civil and regulatory compliance matters.

Our attorneys have significant governmental, regulatory, investigatory and prosecutorial experience, which is combined with our litigation and business resources and practices. This unique skill set and multidisciplinary background enables us to defend and guide our clients, of all sizes, through the complexities of a governmental or internal investigation.

Our Services

We assist our clients in responding to and defending governmental investigations of criminal, civil and regulatory matters, and in leading and conducting internal investigations, including domestic and international internal investigations of possible non-compliance. Our representations have included investigations by the Department of Justice, the Department of Transportation, the Inspector General’s Office of various governmental entities, including military government contracting, as well as various state-level enforcement authorities, including attorneys general throughout the country.

Our Clients

Our clients include private and publicly held companies, including domestic and international companies operating in complex regulatory environments around the world.

Kegler Brown has specific expertise in the representation of clients in many industries, including manufacturing, commodity pricing, construction and road-building, health care, government contracting, hazardous materials transportation, nursing homes, and consumer retail. Notable experience includes:

  • Representation of health care marketing and consulting companies in connection with various grand jury investigations involving off-label marketing of pharmaceuticals
  • Representation of a cable television provider with respect to consumer advertising
  • Representation of a national automotive warranty provider in connection with a state attorney general’s investigation regarding consumer complaints
  • Representation of various companies in connection with governmental bid-rigging and price-fixing investigations, including companies in the dairy business, the road-building business, the nursing home business, the cable television and internet services business, the chemical business, and the computer services business
  • Representation of a managerial executive with the nation’s largest air cargo carrier in connection with a governmental investigation regarding the transportation of hazardous air cargo triggered by a whistleblower
  • Representation of a law firm in connection with a governmental investigation regarding the alleged theft of trade secrets
  • Representation of a national health care provider executive in a multi-district fraud investigation by the Department of Justice

Our team has also recently conducted internal corporate investigations of potential violations of the Foreign Corrupt Practices Act (FCPA) and related domestic and foreign anti-corruption laws by foreign affiliates of a domestic corporation.

People

Luis M. Alcalde

Director

614-462-5480Email
Nicholas S. Bobb

Director + Co-Chair, Litigation Practice

614-462-5414Email
Vinita Mehra

Director + Leader, Global Business Practice

614-255-5508Email
Loriann E. Fuhrer

Director

614-462-5474Email

Publications + Presentations

Article

Complying with Recent OFAC Sanctions Imposed Against Russia + Belarus

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Ohio’s Revised LLC Act - What You Need to Know

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Current Growth Areas: India

On December 10th, 2020, Vinita spoke on business opportunities in India for the City of Dublin, Ohio’s program, which was a joint effort of the Japan-America Society of Central Ohio (JASCO) and the Asian Indian American Business Group (AIABG).

Pan-Asian Business Forum
Video Clip

Indo-US Economic Partnership: Prospects & Challenges in the Approaching Decade

Vinita was invited to speak as a guest of the Indo-American Chamber of Commerce as part of the IACC’s 16th Indo-US Economic Summit in September 2020. The event focused on the business opportunities and trends between the US and India and Vinita, who presented as part of a panel, addressed the effects of the COVID-19 pandemic on trade relations and the rising political and economic tension between the two countries. 

Indo-American Chamber of Commerce 16th Indo-US Economic Summit
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Seminar on Trade Finance: Understanding & Addressing the Gaps in International Trade

On September 4, Vinita joined the CII Western Region webinar, under the aegis of the Sub-Committee on International Trade and Investment, that focused on understanding and addressing the gaps in international trade. Along with Vinita, the featured panelists were Ms. Harsha Bangari, the Deputy Managing Director of EXIM Bank and Mr. Sethuraman Sathappan, Chief Operating Officer of India, Emirates NBD.

Confederation of Indian Industry (CII) Live Webinar
publication

Key Legal + Business Issues - Navigating Complexities in Doing Business in the U.S

On Friday, May 1, Vinita Mehra and Cody Myers presented at Indo-American Chamber of Commerce’s Key Legal + Business Issues: Navigating Complexities in Doing Business in the U.S. webinar. The webinar covered a variety of topics including: drivers + trends of Indian outbound investments to the U.S., EDO incentive programming, negotiating contracts, protecting intellectual property, and impact of COVID-19 on Indo-U.S. businesses.Webinar SpeakersDr. Lalit Bhasin, President, IACC, NICMr. Raman Roy, Chairman and Managing Director, QuatrroMs. Aileen Nandi, Minister Counselor for Commercial Affairs, U.S. EmbassyMs. Vinita Mehra, Director + Leader, Global Business Practice, Kegler Brown Hill + RitterMr. Cody Myers, Associate, Kegler Brown Hill + RitterYou can listen to the webinar recording here. <link recording>You can view the presentation here. <link slideshare> On Friday, May 1, Vinita Mehra presented at Indo-American Chamber of Commerce’s Key Legal + Business Issues: Navigating Complexities in Doing Business in the U.S. webinar. The webinar covered a variety of topics including: drivers + trends of Indian outbound investments to the U.S., EDO incentive programming, negotiating contracts, protecting intellectual property, and impact of COVID-19 on Indo-U.S. businesses.Webinar Speakers Dr. Lalit Bhasin, President, IACC, NIC Mr. Raman Roy, Chairman and Managing Director, Quatrro Ms. Aileen Nandi, Minister Counselor for Commercial Affairs, U.S. Embassy Ms. Vinita Mehra, Director + Leader, Global Business Practice, Kegler Brown Hill + Ritter Mr. Cody Myers, Associate, Kegler Brown Hill + RitterKegler Brown · Key Legal + Business Issues - Navigating Complexities in Doing Business in the U.S

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5 Recommendations for Universities Facing Tuition Refund Class Action Suits

Smart Summary If your college or university sees a class action suit as a result of COVID-19, contract terms, including language of any force majeure clauses, will be critical.In addition to contract-based defenses, colleges + universities may look to procedural defenses and common law defenses like “impossibility” and “frustration of purpose.”Universities will want to think through their refund and future service credit offerings to try to minimize claims and any potential damages. In the wake of colleges and universities across the country turning to distance learning to minimize the spread of COVID-19, it is no surprise that putative class action complaints are now being filed seeking refunds and discounts on tuition and other fees paid by students. By now, you likely already know that cases have been filed against Purdue University, the University of Miami, Drexel University, and the Boards of Regents of both the University of Colorado and the University of Arizona. A number of these suits have been brought by the same law firm, which is attempting to attract new cases through its website “CollegeRefund2020.com.”Some of the suits seek reimbursement of a portion of paid tuition, based on the theory that the students contracted for an on-campus educational experience, which has not been provided. Other suits seek reimbursement of a portion of paid housing, meal plan expenses, and/or other service fees relating to athletic facilities, medical services or other amenities.For in-house counsel at universities across the country who are pondering whether their institution will be the next target of these lawsuits, we’ve outlined five key questions you should be considering if (and even before) your institution is sued.What are the contract terms? The claims being filed are predominantly contract claims, so the specific language of your institution’s contractual relationships with its students will be important. The applicable terms may specifically address refunds, school closures, and emergency circumstances. Is “force majeure” a defense? You and your outside counsel should consider whether there are any contractual force majeure provisions that may relieve performance in the event of some unforeseeable circumstance like a nationwide pandemic. Again, the specific language of your force majeure provision is important.Are there common law defenses? Even if the contractual language at issue does not contain a force majeure provision, certain common law defenses may be available, depending upon the jurisdiction in which any suit is brought and the applicable law. Common law principles of “impossibility” and “frustration of purpose” can, under some circumstances, provide a defense.Are there procedural defenses? In addition to contract-based defenses, procedural defenses may also be available to you. An institution that has been sued will want to consider: whether personal jurisdiction exists in the jurisdiction in which the suit has been brought; whether the named plaintiff is an appropriate representative of the putative class; how the class or classes have been defined; and whether the traditional legal requirements for each claim have been met. Unjust enrichment claims are included in several of the early cases. The law of most states holds that claims for breach of contract and unjust enrichment are mutually exclusive, although many states allow plaintiffs to plead both, subject to later proof and/or choice of remedy.What can be done to minimize claims and potential damages? The relevant facts vary from university to university. Some universities have allowed students to remain in student housing and to continue to receive meals pursuant to their meal plan, while other universities have ceased housing and cafeteria operations entirely. Some universities have offered refunds or partial refunds, while others have not. Ensuring students stay on track to receive course credits toward graduation during periods of necessary distance learning will help to mitigate potential damages. Institutions that think creatively and take steps to introduce new ways of fostering community engagement and mentorship that would otherwise take place in residence halls will also be in a better position to defend tuition claims. For example, if a student took History 101 during the mandated period of distance learning, allowing him or her the option to re-take the class in-person once school resumes may be a productive way to mitigate potential damages. Similar options may exist for meal, athletic and health services. However, similar options may not exist with respect to housing availability. While closure decisions may already have been made, universities will want to think through their refund and future service credit offerings to try to minimize claims and any potential damages.No matter the course of action you choose, college and university counsel should be in close communication with their outside counsel partners, in particular those with substantial class action experience. Discussing these and other potential defense strategies can give your institution a head start on any litigation that may be headed your way.Vinita Mehra is a director and chair of Kegler Brown’s Global Education practice group, and works with college and university clients across the country on their operational and strategic planning issues. She can be reached directly at vmehra@keglerbrown.com or (614) 255-5518.Lori Fuhrer and Robert Cohen are directors and experienced trial lawyers in Kegler Brown’s Class + Collective Action practice, where they defend clients in contract and class action litigation of all kinds.Fuhrer can be reached directly at lfuhrer@keglerbrown.com or (614) 462-5474.Cohen can be reached directly at rcohen@keglerbrown.com or (614) 462-5492. 

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PPP + EIDL Eligibility for Foreign-Owned U.S. Businesses

Smart Summary U.S. companies with foreign ownership may be eligible for both the PPP and EIDL government loan programs, depending on corporate structuring.EIDL eligibility counts employees of all affiliated companies, whether U.S. or non-U.S., toward the general 500 cap.The PPP is more lenient, and counts employees of all affiliated companies toward the 500 general cap ONLY IF they have a principal place of residence in the U.S. In light of the new loan programs from the Small Business Administration (“SBA”), small businesses all over the United States have acted quickly to apply for and obtain the newly available funds. Both the Paycheck Protection Program (“PPP”) and the Economic Injury Disaster Loans (“EIDLs”) provide a small business owner with operating capital necessary to implement a holistic cash access strategy in order to survive – and possibly thrive – during this “Great Pause.” A savvy business owner can combine both the PPP and EIDLs to have many operating expenses entirely covered while weathering the storm of U.S. government-imposed lockdowns. This is very clear for companies based in the U.S., but what about U.S.-based businesses with foreign parent companies? Can they take advantage of the PPP and EIDL? The answer is: maybe.A U.S.-based company owned by a foreign company may be eligible for both the PPP and an EIDL. In most of these cases, the answer will depend on two things: 1) number of employees, and 2) the organizational structure of the conglomerate. Number of Employees Under EIDLs + the PPPAlthough there are several eligibility requirements, an applicant business is generally eligible for a loan under either program if it has fewer than 500 employees. If a business has more employees, it may still be eligible if the size is considered “small” based on industry standards, as determined by the SBA. Under both programs, employees of affiliates are attributable to an applicant. However, to make matters more confusing, the number of employees attributable to an applicant are calculated differently under each program.Number of Employees under an EIDL – Foreign Affiliate Employees CountA U.S. company owned by a foreign company has at least one affiliate (its parent company and possibly other companies also owned by the parent company). For purposes of an EIDL, all employees of affiliates are counted against an applicant, regardless of the employee’s principal place of residence. If a company is found to be an affiliate of an applicant, then all employees of the affiliate, both U.S. and non-U.S., are counted against the applicant.Number of Employees under the PPP – Foreign Affiliate Employees Might Not CountUnlike the EIDL program, the PPP makes an important distinction with respect to employees of affiliates. Based on guidance issued by the SBA, only employees of affiliates having a principal place of residence in the United States count against an applicant for purposes of determining eligibility under the PPP. Therefore, even if a U.S. company with a foreign parent company and foreign affiliates would be well over the 500 threshold for purposes of an EIDL, it may be eligible for a PPP if, between the applicant and its affiliates, there are not greater than 500 employees having a principal place of residence in the United States.Affiliation- Why Your Company Structure MattersThe structure of an applicant’s parent company will determine how many affiliates are attributable to an applicant. A comprehensive analysis of the SBA’s affiliation rules is necessary to conclusively determine whether entities are affiliates. But generally speaking, entities are affiliates if one controls the other or a third party has the power to control both. Control is determined by analyzing the governing documents of the entities. Notably, control may be found even if there is simply an ability to block action by the entity, or “negative control.” Examples + Related EligibilityAs we mentioned above, the structure of the conglomerate matters for determining eligibility under the PPP and an EIDL. Here are examples some examples.Company A – Eligible for PPP and EIDLResult: Company 1 is eligible under the PPP and for an EIDL. Explanation: Parent, Company X, and Company Y would be considered affiliates. Because Parent has the ability to control Company A (via its 100% ownership), Parent is an affiliate of Company A. Further, because Parent has the power to control Company A, Company X, and Company Y, they would also be considered affiliates. Therefore, for purposes of Company A’s eligibility under an EIDL, the total number of employees attributable to it would be 400. Company A is also eligible under the PPP because only 100 of the total employees have a principal place of residence in the U.S.Company B – Eligible for PPP, but not EIDL Result: Company B is eligible under the PPP, but not for an EIDL. Explanation: Parent, Company X, and Company Y would be considered affiliates. Because Parent has the ability to control Company B (via its 100% ownership), Parent is an affiliate of Company B. Further, because Parent has the power to control Company B, Company X, and Company Y, they would also be considered affiliates. Therefore, for purposes of Company B’s eligibility under an EIDL, the total number of employees attributable to it would be 3,100. However, Company B is eligible under the PPP because only 100 of the total employees have a principal place of residence in the U.S.Company C – Not Eligible for the PPP or EIDLResult: Company C is not eligible under the PPP or for an EIDL. Explanation: Parent, Company X, and Company Y would be considered affiliates. Because Parent has the ability to control Company C (via its 100% ownership), Parent is an affiliate of Company C. Further, because Parent has the power to control Company C, Company X, and Company Y, they would be considered affiliates. Therefore, for purposes of Company C’s eligibility under an EIDL, the total number of employees attributable to it would be 3,100. Company C is also not eligible under the PPP because 600 of the total employees (Company C’s and Company X’s) have a principal place of residence in the U.S. What You Should DoIf you are a U.S.-based company owned by a foreign company, you may be eligible under these loan programs. The answer lies in the total number of employees under your parent company’s corporate umbrella, how many of them would be attributable to you under the affiliation rules, and where the employees have a principal place of residence. You should contact legal counsel familiar with the SBA’s affiliation rules and both programs to make the ultimate decision as to your eligibility for an EIDL or under the PPP.Vinita Mehra is a director and chair of the firm’s Global Business team, working with U.S. subsidiaries of companies based outside the U.S. in coordinating, acquiring and maximizing federal loans as a result of the pandemic. She can be reached directly at vmehra@keglerbrown.com or (614) 255-5508.

Kegler Brown Global Business News
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India Extends Nationwide Shutdown through May 3

Smart SummaryIndia has extended its nationwide shutdown order through May 3. All passenger flight and rail operations in India are accordingly suspended, though export/cargo operations are still permitted. As demand continues to soften, businesses should be re-evaluating their manufacturing operations and disaster continuity strategies. As I covered in a March 27 article, “ What U.S. Businesses with India Operations Need to Know about Modi’s Shutdown,” the pandemic had crippled the Indian market, meaning U.S. businesses with investments in the subcontinent had to reconsider supply chain strategies. Prime Minister Narendra Modi and the Government of India have now expanded the nationwide shutdown through May 3, which includes not only local commercial operations, but also extends to all passenger air and rail travel. The restriction however does not apply to cargo operations to and from India, so U.S. companies can continue to export goods for sale. While American companies will still face the same strategic obstacles, their current struggles exporting goods to and through the country may worsen as the delays continue to weaken the supply chain and soften demand. On a positive note, Modi did indicate that some states and districts that have successfully avoided the pandemic thus far may be allowed to slowly and conditionally resume some activities. U.S. companies with international operations have been seeking alternative manufacturing facilities and labor options, but have found them hard to come by. Those companies would be wise to also re-imagine their manufacturing disaster continuity plans, as well, in order to prepare for similar supply chain disruptions in the future, as India and other countries will be much more cautious going forward about containing any potential pandemic. More detailed guidelines are expected soon from India and we will continue to update our clients and partners on the developments. Vinita Mehra is a director and chair of Kegler Brown’s Global Business team, where she works with clients on their India market strategies. She is licensed to practice law in Ohio and India, speaks fluent Hindi and offers years of practical, hands-on legal, business and personal experience in India. Vinita can be reached directly at vmehra@keglerbrown.com or (614) 255-5508.

Kegler Brown Global Business News