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White Collar Posts

OIG 15-Year Exclusion for False Claims Act Violations by Lab Company and its CEO Sends Warning to FCA Defendants >
September 13, 2018
By: Carolyn H. Kendall
On August 17, 2018, a Department of Health and Human Services ALJ affirmed HHS OIG's 15-year exclusion of BestCare Laboratory Services, Inc. and its CEO from federal health care programs pursuant to the OIG's permissive exclusion authority. The exclusion was based on BestCare's submission of false claims for mileage reimbursement which violated CMS billing restrictions and formed the basis of a qui tam False Claims Act action, culminating in a $30 million damages award.
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Eastern District of Pennsylvania Forms Civil Enforcement Strike Force Adding Resources to False Claims Act Cases >
August 7, 2018
By: Internal Investigations & White Collar Practice Group
On August 1, 2018, U.S. Attorney for the Eastern District of Pennsylvania William M. McSwain announced the formation of an Affirmative Civil Enforcement (“ACE”) Strike Force within the U.S. Attorney's Office Civil Division. The ACE Strike Force's mission is to bring "additional firepower" to investigations and lawsuits that “prosecute fraud and abuse against government programs, including healthcare and procurement fraud,” as well as to enforce federal civil rights statutes and "combat the opioid crisis." The ACE Strike Force will initially include five Civil AUSAs and a team leader. 
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Individuals Can Revoke Consent to Law Enforcement Searches, Third Circuit Holds >
August 6, 2018
By: Carolyn H. Kendall
Criminal suspects and subjects of investigations frequently are asked by law enforcement to consent to searches of their possessions, such as vehicles and bags during traffic stops, and even their homes. Trying to be cooperative, many initially agree, but later change their minds when officers' actions go beyond their comfort or expectations. Although it has long been settled that an individual can limit the scope of a consensual search, perhaps surprisingly, whether that consent could be revoked was an open question in the Third Circuit until recently. On August 1, 2018, the court answered that question in the affirmative.
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Fighting the Seizure of Attorney-Client Communications >
July 11, 2018
By: Ronald H. Levine
The government's seizure of attorney-client communications, a headline event when it involves the President's lawyer Michael Cohen, actually is a recurrent problem in white collar criminal investigations due to the convergence of several trends.
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Felony Tax Obstruction Statute Only Applies to Ongoing or Foreseeable Proceedings, Not to Routine Non-Compliance with Tax Code Requirements, SCOTUS Clarifies >
March 21, 2018
By: Carolyn H. Kendall
On March 21, 2018, the U.S. Supreme Court in Marinello v. United States imposed a significant limitation on the government's ability to charge and successfully convict taxpayers for obstructing administration of the Internal Revenue Code. Section 7212(a) of the IRC makes it a felony to “corruptly or by force” “endeavor[] to obstruct or impede[] the due administration of this title.” In a 7-2 decision, the Court announced a narrow interpretation of “due administration of [the IRC],” holding that due administration referred only to a particular proceeding and not general IRS administration.
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Time is Running Out to Disclose Hidden Foreign Assets and Receive Amnesty from Criminal Prosecution, IRS Says >
March 15, 2018
By: Carolyn H. Kendall
The IRS has announced that it is ending its Offshore Voluntary Disclosure Program (OVDP) in September, 2018. The OVDP currently is the only available mechanism for U.S. taxpayers with undisclosed foreign assets to come into compliance with U.S. tax and foreign asset reporting laws and eliminate the risk of related criminal exposure. Taxpayers who still have undisclosed offshore financial accounts and other assets have roughly six months to send a completed disclosure package to the IRS; the process of crafting and submitting a disclosure can be lengthy so taxpayers should not delay.
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Attorney-Client Privilege Trumps Confrontation Clause, Says Eastern District of Pennsylvania >
March 12, 2018
By: Carolyn H. Kendall
On March 2, 2018, the District Court for the Eastern District of Pennsylvania addressed whether a criminal defendant can cross-examine an immunized government witness about the content of her communications with her own counsel regarding her receipt of immunity. Ruling on this issue of first impression, the court held that neither the Confrontation Clause nor the witness' immunity agreement permitted such an inquiry.
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Latvian Bank Faces Exclusion as a "Primary Money Laundering Concern" Based on North Korean Ties and Other Misdeeds >
February 15, 2018
By: Carolyn H. Kendall
On February 12, 2018, the Financial Crimes Enforcement Network ("FinCEN"), a division of the Treasury Department charged with enforcing the anti-money laundering provisions Bank Secrecy Act ("BSA"), branded ABLV Bank, AS as a "financial institution of primary money laundering concern" and announced its intention, via a notice of proposed rulemaking, to effectively exclude ABLV Bank from the U.S. financial system by prohibiting U.S. banks from opening or maintaining correspondent accounts in ABLV Bank's name or on its behalf.
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The New Tax Bill: Settlement Considerations Regarding Tax Treatment of Fines, Penalties, and Restitution >
January 18, 2018
By: James R. Malone, Jr., Barbara Rowland, and Ronald H. Levine
Corporations and counsel negotiating settlement agreements with the United States under the False Claims Act, or other statutes that provide for monetary damages and penalties, must be aware of the impact of the recently enacted Tax Cuts and Jobs Act on the ability to take business tax deductions for these amounts. The Act made changes to tax treatment that are effective for agreements and orders that are finalized on or after December 22, 2017.
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Pennsylvania Data Breach Litigation: An Important New Resource...and a Case to Watch >
January 10, 2018
By: Abraham J. Rein
On January 8, 2018, Bloomberg Law's Privacy & Data Security publication released its "Domestic Privacy Profile" for Pennsylvania, for which I served as Bloomberg's subject matter expert practitioner. The publication is extremely comprehensive in scope, but I'd like to take the opportunity to highlight one Pennsylvania case that it discusses, which is currently before the state Supreme Court and could have a significant impact on privacy and data security litigation in Pennsylvania.
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Third Circuit Rejects FCA Claims of Medicare Part D Fraud Applying Post-Escobar Materiality Bar; Acknowledges Validity of Government Knowledge Inference Defense >
November 29, 2017
By: Barbara Rowland and Carolyn H. Kendall
Earlier this month the United States Court of Appeals for the Third Circuit ended a long-fought False Claims Act case of alleged Medicare Part D fraud, holding that a pharmacy benefit manager's limited non-compliance with pharmacy claims processing requirements was not material to Medicare's payment decisions within the meaning of the Supreme Court's Escobar decision. On November 16, 2017, in United States ex rel. Spay v. CVS Caremark Corporation, the Third Circuit affirmed the district court's summary judgment dismissal in its second significant post-Escobar materiality decision. Interestingly, the appellate court veered away from the district court's holding that the "government knowledge inference" defense precluded liability for the PBM and instead found that the Relator failed to demonstrate that the alleged non-compliance met the Escobar materiality threshold.
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Mr. Mueller's Options, Short of Indictment >
November 28, 2017
By: Ronald H. Levine
Suppose Special Counsel Robert Mueller's team develops evidence that nonetheless is material to matters of national security or to non-criminal malfeasance? Obviously, this would be of great interest to the public and to Congressional committees investigating parallel and related matters. What are his options? I discuss this in my November 27, 2017 article for Law360, "Mueller's Options, Short Of Indictment."
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