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When Can a Win Become a Loss and a Loss Become a Win?
How can you undertake the same conduct and turn a win into a loss, and a loss into a win? It happens every day.
A company secures injunctive relief against a competitor or a bad actor. A court issues a consent decree or a preliminary injunction that restricts the other party’s conduct. On paper, the matter is resolved. In practice, it is only beginning.
Successfully obtaining an injunction or benefitting from a government enforcement action against another party is a Pyrrhic victory if the wrongdoer finds ways to circumvent the legal restrictions. The court order is only as strong as the enforcement behind it. And enforcement, in commercial disputes, rarely happens on its own.
The Gilead Case: A Win That Requires Vigilance
A recent case involving Gilead Sciences illustrates the point clearly. In May 2026, a federal judge issued a preliminary injunction against multiple Queens-based pharmacies accused of selling counterfeit versions of Gilead’s HIV medications, including Biktarvy and Descovy. According to court filings, the defendants allegedly emptied authentic prescription bottles, refilled them with incorrect medication, resealed them with counterfeit tamper evident materials, and sold them with falsified patient information and pedigrees.
The alleged scheme was not small. Gilead’s investigations, supported by the New York City Sheriff’s Office, led to seizures of more than $750,000 in suspected counterfeit medication. The principal defendant, Peter Khaim, was described as a fraudster convicted twice over who had already been subject to a prior injunction from a 2021 case with Gilead, one in which he allegedly generated over $38 million selling counterfeit medications.
That last detail is the critical one. Khaim was already operating under a prior court order when the new scheme was uncovered. A previous legal victory had not stopped the conduct. It simply changed the form it took.
This is the pattern our team has seen across a range of commercial enforcement matters. A court order creates a boundary. The question that follows is whether anyone is actively monitoring that boundary or whether the other side is finding new ways around it.
The Enforcement Gap
Consider what Gilead now faces even after winning its most recent injunction. The court has prohibited these pharmacies from marketing HIV medications bearing the Gilead brand. But how will Gilead verify that the injunction is being obeyed?
The practical questions are numerous and specific. Are the pharmacies continuing to operate through affiliated entities or under different names? Are counterfeit products being moved through alternative distribution channels? Do the books and records reflect actual sales activity, or are transactions being structured to avoid detection? Can consumer test purchases confirm that prohibited products are no longer reaching the market?
The answers to these questions do not come from the court order itself. They come from investigation.
This is where the distinction between a legal victory and an operational one becomes clear. The injunction provides legal authority. But without a sustained program of compliance monitoring, forensic analysis of financial records, undercover consumer purchases, supply chain verification, and ongoing intelligence gathering, the injunction remains a document rather than a deterrent.
In antitrust, intellectual property, and trade secret cases, the company that obtained the relief often has the most direct interest in ensuring compliance. Unlike criminal enforcement, where government agencies bear the cost and responsibility of monitoring, commercial injunctions frequently leave the prevailing party to fund and manage its own enforcement program. Competitors, brand owners, and organizations with a financial stake in the outcome are the ones who must design and execute the monitoring effort. That reality calls for a program that combines sophisticated digital and cyber capabilities with traditional investigative methods, because circumvention in the modern commercial environment takes both digital and physical forms.
There is an even more effective approach than monitoring after the fact. The strongest enforcement position begins before the court order is ever issued.
When a company engages experienced investigators before filing for injunctive relief, those investigators can map the likely paths of circumvention in advance. They understand how bad actors restructure operations, shift to affiliated entities, use alternative distribution networks, or exploit gaps in standard injunctive language. That intelligence directly informs the drafting of the proposed order itself, allowing counsel to seek broader relief, more specific prohibitions, and more expansive requirements for production of books, records, financial data, and communications from the defendants.
Our team has seen the difference this makes. An injunction drafted with investigative foresight anticipates the workarounds. It closes doors before the defendant has a chance to walk through them. It can include provisions requiring disclosure of affiliated businesses, reporting on new commercial relationships, preservation of specific categories of digital evidence, and access to financial records that a more narrowly drawn order would miss entirely. The result is an order that is meaningfully easier to enforce.
When a Loss Can Become a Win
The other side of this equation is equally important and frequently overlooked. If you are the party operating under an injunction or consent decree, you face a different set of challenges, but the investigative methodology is remarkably similar.
Operating under court-imposed restrictions creates ongoing cost, operational limitations, and reputational exposure. The path to lifting or modifying those restrictions runs through demonstrating, with credible evidence, that the conditions justifying the order no longer exist or that you have achieved sustained compliance.
This is not a task that benefits from self-assessment alone. Courts and opposing counsel will scrutinize any claim that compliance has been achieved. The credibility of that claim depends heavily on who conducted the assessment and how it was performed. An independent evaluation, conducted by investigators with experience in monitoring and compliance verification, carries significantly more weight than internal representations.
We have seen organizations reduce the duration and scope of court-imposed restrictions by proactively engaging independent assessors early in the process. Rather than waiting for a court to ask whether compliance has been achieved, they demonstrate it through documented, independently verified evidence. The investment in that process is almost always less than the cost of remaining under outside controls for an extended period.
The Common Thread: Investigation as the Mechanism
Whether you are the party that won the injunction or the party operating under one, the core requirement is the same. It requires a combination of traditional investigative discipline and modern analytical capability.
On the enforcement side, that means engaging investigators early, ideally before the order is sought, to identify circumvention risks and shape the relief accordingly. Once the order is in place, it means deploying forensic accountants to examine financial records, conducting undercover purchases to test whether prohibited products are still entering the market, analyzing supply chain data for anomalies, and maintaining ongoing surveillance of the restricted party’s business activities. It also means allowing sufficient time after the order is entered for the opposing party to develop its own circumvention strategy, because that window is when investigative readiness matters most.
On the compliance side, it means engaging an independent party to conduct a thorough assessment of your operations against the terms of the order. It means documenting your compliance in a manner that will withstand adversarial scrutiny. And it means doing so with the kind of investigative rigor that a court will find persuasive.
The Guidepost team brings experience across both sides of this equation. Our investigators, many of whom served as federal law enforcement officers with agencies including the DEA, DHS, FBI, and CIA have designed and executed compliance monitoring programs for court ordered restrictions in commercial, regulatory, and government enforcement settings. We have conducted undercover operations, forensic financial reviews, and independent compliance assessments in matters involving antitrust, intellectual property, healthcare fraud, and government contracts.
What our experience shows is that organizations that treat enforcement or compliance as an active, ongoing investigative function, rather than a legal formality, consistently achieve better outcomes. They identify circumvention early. They build evidentiary records that support further relief or demonstrate compliance. And they protect the value of whatever legal outcome they worked to achieve.
A court order is a starting point. How it is drafted, and what happens after it is issued, determines whether it was a win or simply an expensive piece of paper.
MSU Institutional Assessment + RAMAGELLAN MonitorshipEmpire/Liberty Review