Non-target letter not worth paper it's printed on?
Practitioners have long understood that there is some psychic, but little practical, value in securing from the government a letter attesting that the client is not, based on the information then known to the prosecutor, currently considered a target of a grand jury investigation. Such letters are generally heavily caveated, making it clear that the client could readily find himself or herself in jeopardy upon the discovery of any new inculpatory fact or allegation. A recent Eighth Circuit case underscores the ephemeral advantage gained by the possession of a non-target letter.
In Fresenius Medical Care v. United States, 526 F.3d 372 (8th Cir. 2008), plaintiff FMC, a hemodialysis provider, had entered into civil settlements concerning certain sales of a drug called Epogen. As part of a settlement with the U.S. Attorney's Office for the District of Massachusetts, FMC received a so-called "cold comfort letter" advising that DOJ had no open civil or criminal investigations of FMC, and that DOJ had no present intention, based on facts then known as of April 2002, to initiate any matters against FMC. Then, in 2005, the U.S. Attorney's Office for the Eastern District of Missouri issued administrative subpoenas to FMC relating to Epogen sales. The company moved to quash the subpoenas to the extent that they covered a time period including prior to April 2002, based on the "cold comfort" letter of April 2002. The district court denied the motion to quash and the Eighth Circuit affirmed.
The court of appeals rejected any argument that the 2002 letter immunized FMC from further Epogen investigations; the letter was "simply an assurance from the government that, based on the facts it then knew, it was not then planning any further investigation. The letter does not preclude the United States from investigating FMC based on new facts." In other words, never mind.
