U.S. Supreme Court to Decide the Viability of the Implied Certification Theory of False Claims Act Liability >
December 8, 2015
On December 4, 2015, the U.S. Supreme Court agreed to consider a challenge to the federal government's hotly-contested and Circuit-splitting “implied certification” theory of False Claims Act (FCA) liability. The implied certification theory has been a versatile and lucrative tool for whistleblowers and for the government, and a Supreme Court ruling on the viability of this prosecution theory may provide clearer boundaries and more certainty for those who do business with the government.
A Conversation with Darpana Sheth of the Institute for Justice About Legal Challenges to Civil-Forfeiture Laws >
November 30, 2015
The Philadelphia District Attorney's Office recently settled, in part, a federal civil-rights class-action lawsuit seeking declaratory and injunctive relief in regard to its civil-forfeiture policies. I had the opportunity to speak with Darpana Sheth, a lawyer with the Institute for Justice and the lead counsel for the plaintiffs, about this development.
FCC Takes on Hospitality Wi-Fi Management Again: More Sanctions, Unresolved Concerns >
November 4, 2015
On Monday, November 2nd, the Federal Communications Commission (FCC) took more enforcement steps in its campaign against Wi-Fi blocking, "the practice of blocking unauthorized Wi-Fi hotspots that let consumers share mobile data access with other devices, like laptops and tablets" in hotels and convention spaces. This comes on the heels of a $750,000 settlement with Smart City Holdings over its Wi-Fi blocking at multiple convention centers, and a late-2014 settlement of $600,000 with Marriott over similar conduct.
HHS-OIG Senior Counsel Riordan Focuses on Kickbacks, Accountability, and the Role of Compliance in Pharma Compliance Congress Keynote >
October 27, 2015
On Wednesday, October 22, 2015, the 16th Annual Pharma Compliance Congress in Washington, D.C., was kicked off by keynote speaker Mary Riordan, HHS-OIG Senior Counsel and perhaps OIG's most well-known face to the pharmaceutical industry. In her talk, Ms. Riordan laid out three hot button areas for company compliance professionals: kickbacks, individual accountability, and the role of compliance in business operations. We thought these were worth sharing, particularly because two of the areas -- a jump in kickback cases and individual accountability in the investigation and resolution of corporate investigations -- were themes also emphasized by the government speakers at the AUSA Roundtable panel.
A Conversation with UVA Law's Brandon Garrett About the DOJ's Swiss Bank Program >
October 22, 2015
Recently I had the opportunity to speak with my former law professor, Brandon Garrett, about the DOJ's Swiss bank program. Professor Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law, and author of the recent book Too Big to Jail: How Prosecutors Compromise with Corporations. Professor Garrett has written and spoken extensively about white collar corporate prosecutions and the use of non-prosecution and deferred prosecution agreements in the corporate prosecution context.
Further Thoughts About The “Yates Memo” >
October 19, 2015
Now and then, we enshrine Deputy Attorney Generals for DOJ policy memoranda issued in their name (e.g., the “Ogden Memo” on discovery). The white collar bar then dissects DOJ's policy rationale and any operational impact for the defense. Last month's “Yates Memorandum” regarding “Individual Accountability for Corporate Wrongdoing” is no exception.
Takeaways for the Hospitality Industry from FDA's Draft Food Labeling Guidance >
September 16, 2015
The FDA has issued draft guidance regarding previously announced menu-labeling rules set to take effect on December 1, 2015. The scope of those rules, which require certain businesses to post nutrition information about food offered for sale, has raised questions for the hospitality industry.
Independent Contractor Misclassification Presents DOL/IRS Dual Threat
September 9, 2015
In a September 10 article for The Legal Intelligencer, Employment Principal Andrea M. Kirshenbaum and White Collar Principal Peter D. Hardy look at the Department of Labor's (DOL) recent interpretation of how the Fair Labor Standards Act (FLSA) applies to the misclassification of independent contractors.
PharMerica Settlements Highlight Potential for Dual False Claims Act and Controlled Substances Act Liability for Invalid Prescriptions >
August 29, 2015
The American Society for Pharmacy Law's (ASPL) Rx Ipsa Loquitur
In the July/August 2015 issue of Rx Ipsa Loquitur, the newsletter publication of the American Society for Pharmacy Law (ASPL), Internal Investigations & White Collar Defense Principal Barbara Rowland, and Principal Matthew T. Newcomer, examine potential dual False Claims Act and Controlled Substances Act liability for Medicare Part D and Medicaid providers.
FERC Administrative Law Judge Finds Market Manipulation in “Cross-Over” Case >
August 19, 2015
An August 13, 2015 decision of a FERC Administrative Law Judge held that BP America Inc.engaged in market manipulation during a two and a half month period in violation of the Natural Gas Act and FERC regulations. The initial decision, which is subject to Commission review and eventual court appeal, marks another “case of physical for financial benefits" the sort of “cross-over” case involving both physical and financial energy markets that has been at the heart of questions over FERC's jurisdiction, which traditionally extends only to physical trading.
HHS's Data Security Problem: Lessons for the Private Sector >
August 11, 2015
Recently, the House of Representatives Committee on Energy and Commerce cataloged a series of potentially-serious data security failures at the Department of Health and Human Services (“HHS”). The Committee's report reveals, among other things, that HHS division systems have been hacked five times in the past three years, and traces the root of the problem to HHS's treatment of data security as subordinate to operational priorities.
Heightened False Claims Exposure: 60-Day Period to Repay Begins When Overpayment is Suspected Rather Than Confirmed >
August 6, 2015
In a significant decision this week affecting Medicaid and potentially Medicare healthcare providers, a U.S. District Court for the Southern District of New York held that federal False Claims Act (FCA) liability applies to providers that do not repay “identified overpayments” within 60 days of “when a provider is put on notice of a potential overpayment, rather than the moment when an overpayment is conclusively ascertained.”