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The New Tax Bill: Settlement Considerations Regarding Tax Treatment of Fines, Penalties, and Restitution

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

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

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

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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Mr. Mueller's Options, Short Of Indictment

Suppose special counsel Robert Mueller's investigation unearths evidence that falls short of the legal standard to indict (probable cause), or falls short of the DOJ policy standard required to seek an indictment (admissible evidence probably sufficient to obtain and sustain a conviction). Suppose further that - as a matter of national security or noncriminal malfeasance - this evidence would likely be of great interest to the public and/or relevant to congressional committees investigating parallel and related matters. Do potential disclosure options exist notwithstanding the general rule of grand jury secrecy? Yes.

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Thoughts on the Manafort & Gates Indictment: Focused on FBAR Violations

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

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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Sentencing Commission Practitioners Advisory Group Advocates a Closer Look at the Collateral Consequences of Conviction

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

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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