Peter Spivack practices in the areas of white collar criminal litigation, governmental enforcement actions, and complex civil litigation. His experience in the criminal arena includes antitrust, banking, campaign finance, environmental, food and drug, foreign corrupt practices act, health care, and government contract matters. Peter has worked with numerous companies and organizations in defending grand jury investigations, as well as conducting compliance audits and internal investigations and monitoring and improving compliance programs. In addition, Peter has handled a wide array of civil matters, including False Claims Act and international trade litigation.
Peter has extensive experience in defending pharmaceutical, biotechnology, and medical device manufacturers in federal health care and Food and Drug Administration investigations conducted by the U.S. Department of Justice, the Office of Inspector General of the U.S. Department of Health and Human Services, the Food and Drug Administration, the Government Accountability Office, the U.S. Senate, and the U.S. House of Representatives. The subject matters of these investigations have included Food, Drug & Cosmetic Act compliance, Medicare and Medicaid coding issues, pharmaceutical pricing, the Medicare Anti-Kickback Statute, and the Stark law. Peter also has considerable experience in representing entities and individuals in criminal and civil enforcement matters involving competition and antitrust issues.
From 1988 to 1989, Peter clerked for The Honorable William D. Keller of the U.S. District Court for the Central District of California. The following year, he clerked for The Honorable Arthur Alarcon of the U.S. Court of Appeals for the Ninth Circuit. From October 1990 through March 1997, Peter was a federal prosecutor focusing on the investigation and prosecution of complex white collar criminal matters involving corporations and individuals. Most of his investigations involved parallel enforcement actions by federal and state agencies, including the U.S. Securities and Exchange Commission, as well as parallel federal and state civil litigation. In November 1994, Peter received an award from the U.S. attorney general for superior performance as an Assistant U.S. Attorney.
Peter writes and speaks frequently on federal criminal issues. He has played an active role in the bar, serving as the current Co-chair of the D.C. Region for the ABA White Collar Crime Committee and as a past Co-chair of the Criminal Law and Individual Rights Committee for the D.C. Bar.
Health care and Food & Drug
Antitrust and Competition
Hogan Lovells Publications
07 May 2010
"New Amendments to Sentencing Guidelines May Help Reduce Sanctions for Corporate Wrongdoing." SEC Update, Hogan Lovells
04 May 2010
"The United States Sentencing Commission Proposes New Amendments to the Organizational Guidelines." Litigation Alert, Hogan Lovells
26 March 2010
"Transparency Requirements, Health Care Fraud and Abuse Law Changes, and Program Integrity Provisions Enacted as Part of Health Reform Legislation." White Collar and Investigations Update, Hogan & Hartson LLP
17 March 2010
"OIG Predicts Increased Scrutiny and Actions Against Individuals for Wrongdoing." Health Update, Hogan & Hartson LLP
05 December 2008
"U.S. Antitrust Division Revises Language of Conditional Leniency Letters, Issues Comprehensive Written Explanation of Amnesty Program Policies." Antitrust Update, Hogan & Hartson LLP
17 November 2008
"Final Federal Acquisition Rule Will Impose Mandatory Disclosure Regime and Significantly Heighten Compliance Obligations." Government Contracts Update, Hogan & Hartson LLP
"New FAR Rule Imposes Mandatory Disclosure Regime, Heightens Compliance Obligations for Universities, Research." Medical Research Law & Policy Report, BNA, Inc.
05 June 2008
"Off-Label Promotion Under Scrutiny by DOJ." Genetic Engineering & Biotechnology News
Areas Of Focus
Awards / Rankings
Bar Admissions / Qualifications
A recent Ninth Circuit decision confirmed that the risks associated with bringing foreign-originating evidence into the United States – even for what is believed to be a limited purpose – are very real and could result in that evidence being subpoenaed for use in a criminal investigation.
Individual prosecutions under the Foreign Corrupt Practices Act (FCPA) have markedly increased over the past five years. This increase in case law will help to better define local, regional and international enforcement. In addition, more FCPA case law shedding clarity on open issues will be a boon to lawyers, judges and scholars seeking to understand the contours of a complex statute – the elucidation of which has previously been almost the sole province of enforcers.
The US Department of Justice (DOJ) has updated its guidance on the Evaluation of Corporate Compliance Programmes, providing increased clarity on some of the key questions that prosecutors ask in assessing the adequacy of corporate compliance programmes when making charging, sentencing and plea and settlement decisions. The guidance helps companies to proactively create or enhance their compliance programmes and effectively advocate before the DOJ in criminal investigations.
The US Department of Justice (DOJ) has issued a new guidance memorandum entitled "Evaluating a Business Organisation's Inability to Pay a Criminal Fine or Criminal Monetary Penalty". This memorandum aims to provide greater clarity, transparency and uniformity as to how the DOJ's Criminal Division evaluates companies' claims that they cannot pay a proposed criminal fine or monetary penalty.
A court has expressed concern with the government's "routine outsourcing" of investigations to the targets of those investigations seeking cooperation credit. The court noted the corporate target's "uniquely coercive position" over its employees, who may also be potential targets of the investigation. The decision may profoundly affect the structure and scope of cooperation agreements between the government and the corporate targets of criminal investigations.
Throughout 2018 the Department of Justice (DOJ) continued to ring the clarion call for cooperation and sought to provide some certainty, consistency and coordination regarding the incentives offered to companies that provide voluntary disclosures. In particular, the DOJ centralised its guidance memoranda into what is now known as the Justice Manual. The DOJ's goals were to identify redundancies, clarify ambiguities, eliminate surplus language and update the manual to reflect current law and practice.
Government attorneys now have additional discretion in False Claims Act civil cases to award cooperation credit to a corporation that meaningfully assists the investigation without necessarily identifying every individual person outside of senior management involved in the alleged misconduct. The new policy reflects the reality of modern corporate investigations and encourages realistic cooperation efforts without compromising the Department of Justice's policy of holding individuals accountable.
When a legal team needs to find the facts behind fraud and corruption allegations in a government investigation, technology can drive substantial new efficiencies. By filtering and evaluating vast amounts of information, artificial intelligence can effectively sort text messages, audio files, emails and other unstructured data into manageable groups; identify potential relationships between parties accused of fraud or corruption; and recognise patterns of frequency or timing, which may support a client's defence.
While companies can breathe a sigh of relief following the District of Columbia Circuit Court's recent unanimous ruling in In Re Kellogg Brown & Root, Inc, overturning the district court's decision in US, ex rel Barko v Halliburton Co, companies should take some precautions to reduce the risk of disclosure of privileged materials generated during internal investigations.
The US District Court for the District of Columbia recently issued an opinion that has the potential to disrupt the manner in which companies conduct compliance investigations, particularly in regulated sectors such as the defence industry. Although there are certain flaws in the court's reasoning, this decision – if widely adopted – could cause significant disruption in existing corporate compliance and investigation programmes.