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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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Thoughts on the Manafort & Gates Indictment: Focused on FBAR Violations >
October 31, 2017
By: Carolyn H. Kendall
On Monday, October 30, 2017, Special Counsel Robert Mueller unsealed the indictment against former Trump campaign chairman Paul Manafort and his business associate, Richard Gates. The majority of the indictment - 7 out of 12 counts - relates to the pair's alleged failure to file FBARs, which is a violation of Title 31, not Title 26, of the U.S. Code.
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Shale Insight 2017: AG Panel Reflects Contrast in Enforcement Approaches; Criminal Exposures from Civil Litigation >
October 5, 2017
By: Ronald H. Levine
On September 27, 2017, I participated on the panel, "Managing Attorney General Investigations: Increased State Environmental Enforcement and How You Can Survive," at the Shale Insight 2017 conference in Pittsburgh, PA. The panel included Molly Corey, Assistant Attorney General from the Ohio AG Office and Jeff Landry, the Attorney General for the State of Louisiana. My partner Terry Bossert, who chairs our firm's Shale Resource group, moderated.
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Almost Anyone Can Be a Felon: the Troubling Scope of Tax Obstruction, Part II >
August 16, 2017
By: James R. Malone, Jr.
Part I of this Post discussed the background and holdings of United States v. Marinello. This post focuses on the implications of the Second Circuit's construction of the omnibus clause of section 7212(a) of the Internal Revenue Code and on the potential ways in which the Supreme Court might narrow that construction.
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Almost Anyone Can Be a Felon: The Troubling Scope of Tax Obstruction, Part I >
August 14, 2017
By: James R. Malone, Jr.
Next term, the Supreme Court will be reviewing the scope of "tax obstruction" under section 7212(a) of the Internal Revenue Code in a case from the Second Circuit holding that a failure to keep adequate records could support a felony conviction.
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Sentencing Commission Practitioners Advisory Group Advocates a Closer Look at the Collateral Consequences of Conviction >
August 8, 2017
By: Ronald H. Levine
The U.S. Sentencing Commission Practitioners Advisory Group (PAG) is comprised of a private defense bar representative from each Circuit as well as national at-large representatives. Among other things, the PAG provides written comments each year on the Commission's proposed priorities (as well as on the Commission's proposed Guideline amendments which are usually announced near the end of the calendar year).
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Navigating DOJ's New Compliance Program Parameters >
July 11, 2017
By: Ronald H. Levine
The DOJ Criminal Fraud Section's much heralded in-house compliance expert, Hui Chen, quit last month due, she said, to "cognitive dissonance" brought on by the present Administration's conduct at the top. But Ms. Chen leaves in her wake a very significant, detailed memorandum discussing the factors which the government intends to apply going forward in evaluating corporate compliance programs. 
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Elonis Facebook Case Has Life Beyond 2015 SCOTUS Decision >
June 28, 2017
By: Abraham J. Rein and Ronald H. Levine
Many thanks to the excellent SCOTUSblog for tagging our second cert petition in the Elonis Facebook free speech case as its "Petition of the Day" (June 23, 2017). The case has run a long, interesting course.
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Navigating the Cloud's Data Security and Legal Hazards >
June 7, 2017
By: Abraham J. Rein
The Legal Intelligencer recently published my article, “Cloud Control: Data Security Hazards and How to Avoid Them,” in their 2017 Cybersecurity Supplement. The article looks at what businesses need to be thinking about in terms of cybersecurity and compliance issues associated with cloud computing - a model that has largely been embraced by the business world as the rule rather than the exception.
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Off Label-Marketing and Free Speech: Report from APhA 2017 Annual Meeting >
April 5, 2017
By: Matthew T. Newcomer
On March 26th, I presented to pharmacy professionals, clinicians, researchers, and educators in San Francisco for the American Pharmacists Association's (APhA) 2017 Annual Meeting & Exposition. There was a lot of buzz about the growing opioid epidemic, the proliferation of illegal online pharmacies, and off-label marketing.
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Liability for What Goes on Behind Closed Doors: Sex Trafficking and the Hospitality Industry's Privacy Tightrope >
March 28, 2017
By: Abraham J. Rein, Charles W. Spitz, and Marc H. Perry
Earlier this month, the Philadelphia hotel, Roosevelt Inn, its corporate parents, its New York management company, and an individual owner/manager of the hotel, were sued for allegedly allowing trafficking of sex involving a minor to take place on the hotel's premises. The case - the first of its kind invoking Pennsylvania's recently-amended human trafficking law - raises an abundance of difficult legal and ethical questions regarding hotels' legal responsibilities for and obligations concerning their guests' conduct, and how to meet those responsibilities while also respecting guests' privacy.
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White Collar Posts, from members of Post & Schell's Internal Investigations & White Collar Defense Group, are intended to alert clients, friends and colleagues to issues and trends in internal investigations, government enforcement, fraud and abuse, compliance, and white collar defense.

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