ERISA Criminal Investigations
Oberheiden PC is a team of ERISA defense attorneys and former federal prosecutors.
Our experienced ERISA attorneys have helped corporate and individual employers in DOL investigations across the United States. From our significant case load and the insights of our lawyers that have previously served at the U.S. Department of Justice, we offer our clients experienced and competent advice and diligently work to protect and defend our clients’ businesses, reputation and freedom.
Dr. Nick Oberheiden is an experienced ERISA defense attorney who represents clients in all stages of an investigation with the goal and track record of avoiding criminal charges or excessive civil liability judgments. If you are interested in a free consultation with Dr. Oberheiden, you can reach him seven days a week. Your case is important to him and you will not be delegated to junior lawyers or paralegals. Call today and get important insights into the investigative process and a free case analysis.
ERISA/EBSA criminal investigations are in part based on the following statutory and procedural foundations.
1. Statutory Authority. Section 506(b) of the Employee Retirement Income Security Act (ERISA) provides that the Secretary of Labor has the responsibility and authority to detect, investigate and refer (where appropriate) criminal violations of Title I of ERISA as well as other related federal laws, including Title 18 of the U.S. Code.
2. Program Investigations. The Employee Benefits Security Administration (EBSA) conducts its criminal investigations under Program 52. A Program 52 investigation is generally opened on the subject of the investigation and, on its case opening form, states the reason for the case opening and the potential criminal violations involved. It is EBSA’s mandate that all material allegations and investigative leads be fully investigated. The relevant criminal statutes investigated include, but are not limited to:
(a) Title 18 U.S.C. § 664, “Theft or Embezzlement from Employee Benefit Plan;”
(b) Title 18 U.S.C. § 1027, “ False Statements and Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act;”
(c) Title 18 U.S.C. § 1954, “Offer, Acceptance or Solicitation to Influence Operations of Employee Benefit Plans;”
(d) Title 29 U.S.C. § 1111, “Prohibition Against Certain Persons Holding Certain Positions” (ERISA Section 411);
(e) Title 29 U.S.C. § 1131 “Willful Violation of Title I, Part 1” (ERISA Section 501);
(f) Title 29 U.S.C. § 1141 “Coercive Interference” (ERISA Section 511);
(g) Title 18 U.S.C. § 669, “Theft or Embezzlement in Connection with Health Care;”
(h) Title 18 U.S.C. § 1035, “False Statements Relating to Health Care Matters;”
(i) Title 18 U.S.C. § 1347, “Health Care Fraud;” and,
(j) Title 18 U.S.C. §1518, “Obstruction of Criminal Investigations of Health Care Offenses.”
Other criminal statutes that may be violated in connection with employee benefit plan operations include: 18 U.S.C. § 1341, “Mail Fraud;” 18 U.S.C. § 1343, “Wire Fraud;” 18 U.S.C. § 1346, “Honest Services Fraud;” and, 18 U.S.C. §371, “Conspiracy” (to commit the preceding).
3. Dual Responsibility. In employee benefit plan investigations, there may be overlapping jurisdiction of civil and criminal ERISA violations and related sections of Title 18 of the U.S. Code. The decision whether to pursue an investigation civilly, criminally, or both is made on a case by case basis by the relevant Regional Director (RD).
4. Parallel Investigations. When an ERISA civil investigation collects sufficient evidence to make a preliminary determination that the matters being investigated may additionally constitute a violation of either Title 18 or ERISA’s criminal sections, the relevant Regional Director is mandates to open a criminal investigation on the subject. The decision as to whether to conduct civil and criminal investigations concurrently or consecutively are made by the Regional Director on a case by case basis.
If a decision has been made by the Regional Director to proceed with both civil and criminal investigations, the following guidelines are generally observed:
(a) Neither the same Investigator/Auditor nor the same Group Supervisor may be assigned to both the civil and criminal investigations. Moreover, the Investigator/Auditor assigned to the civil investigation may either continue working on the civil investigation or be reassigned to the criminal investigation as determined by the Regional Director (except as otherwise indicated below).
(b) If it has been determined that the civil investigation will be referred to the Office of the Solicitor (SOL) of the Department of Labor for litigation, the Investigator/Auditor and Group Supervisor for the civil investigation should not be reassigned to the criminal investigation so long as the investigation remains open unless specifically authorized by the Regional Director (noting that the Chief and the Designated Federal Officer will be informed of this decision).
(c) When the criminal investigation is opened, all relevant documents, interviews and other information from the civil case file are duplicated and placed within the criminal case file. Any further access to the civil case file by the Investigator/Auditor for the criminal investigation will be coordinated by the Regional Criminal Coordinator.
5. Disclosure of Criminal Investigation. EBSA does not inform plan officials or others as to the source of its investigations. Nonetheless, Investigators/Auditors should be forthright in stating that EBSA is conducting a criminal investigation. When issuing an administrative subpoena in a criminal investigation, the subpoena must state that EBSA is conducting a criminal investigation. In instances when EBSA investigators participate or assist other law enforcement agencies in the conduct of a criminal investigation, the relevant field office should consult with the Assistant U.S. Attorney (AUSA) regarding the manner in which such disclosures should be made.
6. Contact with U.S. Attorney’s Office (USAO). The USAO is generally contacted at the earliest possible stage of the investigation to determine USAO interest and available resources to prosecute the matter. When interest in pursuing the investigation is expressed, the Investigator/Auditor (with the approval of the supervisor) will consult on an as-needed basis with the AUSA assigned to the investigation, noting that the AUSA is generally advised if there is an on-going civil investigation. Similarly, if there is an on-going civil investigation and a criminal prosecutor has been assigned to the criminal investigation, the supervisor for the civil investigation is generally notified. If the civil investigation has been referred to the SOL, the relevant field office will provide the name of the AUSA to the regional solicitor as soon as possible.
7. Use of the Grand Jury. When Title 18 or ERISA criminal statutory violations are involved, the AUSA will be consulted as to whether or not Grand Jury Subpoenas will be used in obtaining records and testimony from witnesses. In addition to the Investigators/Auditors and supervisory personnel who are involved in a Grand Jury investigation, the Regional Officer shall request that the Regional Criminal Coordinator and the Deputy Director for Criminal Enforcement be included on the Rule 6(e) disclosure lists.
8. Handling and Securing Grand Jury Information. Rule 6(e) of the Federal Rules of Criminal Procedure prohibits the disclosure of any information that would reveal matters occurring before the grand jury. Rule 6(e) does not cover all information developed during the course of a grand jury investigation, but only information that would reveal the strategy or direction of the investigation, the nature of evidence produced before the grand jury, the views expressed by members of the grand jury, or anything else that actually occurred before the grand jury. The Documents secured pursuant to Grand Jury Subpoenas may be secret and subject to the disclosure rules found under Rule 6(e). Local rules and case law in the jurisdiction where the grand jury is sitting govern whether subpoenaed documents are subject to the secrecy rules of 6(e). However, the relevant Investigators/Auditors must presume that documents subpoenaed by a grand jury are subject to the secrecy requirement of 6(e) unless instructed otherwise by the AUSA assigned to the case. This information may include all materials obtained through the Grand Jury Subpoena and any work papers, schedules, etc. which have been prepared using information obtained by the Grand Jury Subpoena.
Grand jury information cannot be used in any civil investigation unless the court issues an appropriate order under Rule 6(e) of the Federal Rules of Criminal Procedure.
9. Use of Administrative Subpoenas.
(a) EBSA may issue administrative subpoenas in a criminal investigation. EBSA does not use its administrative subpoena authority to compel testimony in its criminal investigations but may issue subpoena duces tecum to acquire documents. In connection with a subpoena duces tecum, EBSA may require a witness to testify to the authenticity of the documents.
(b) In issuing an administrative subpoena in a criminal investigation, EBSA should state that it is conducting a criminal investigation pursuant to section 504(b) of ERISA.
(c) Before issuing any subpoenas in a criminal investigation, investigators should arrange with the Regional Criminal Coordinator to review the civil case file for the desired material.
10. Criminal Investigation Interviews. In criminal investigation interviews, Investigators/Auditors must clearly identify themselves. EBSA credentials are to be displayed to interviewees and the Investigator/Auditor should seek the voluntary cooperation of the interviewee. The investigator is to advise that he/she is conducting a criminal investigation. The interviewee must also be informed that any information obtained may be referred to the U.S. Department of Justice or other appropriate agency. In those instances when EBSA investigators participate or assist other law enforcement agencies in the conduct of a criminal investigation, the relevant field office should consult with the AUSA regarding the manner in which criminal interviews are to be conducted.
11. Search and Seizure. Investigators/Auditors may conduct and participate in a search and seizure action. Although EBSA Investigators/Auditors may prepare an affidavit, the application or request for a warrant should be made by the AUSA, or agents from other law enforcement agencies, who are authorized to apply for a warrant. Investigators/Auditors may serve the warrant; however, on-site search and seizure actions should be coordinated with the law enforcement agencies applying for the warrant.