GBB files amicus on behalf of law professors in FCA case before Supreme Court

Congress intended the False Claims Act to apply broadly and reach all fraudulent attempts to cause the United States Government to pay out money. In Universal Health Services, Inc. v. United States ex rel. Escobar, a key case pending before the United States Supreme Court, the Petitioner has urged a counter-textual interpretation that would vitiate the False Claims Act and compromise Congress’ intent.  On behalf of a distinguished group of law professors, Guttman, Buschner & Brooks PLLC has filed an amicus brief in the matter.

The amicus brief proposes a comprehensive model, the application of which will ensure the Act continues to effectuate Congress’ intent.  As the brief explains, the starting point for determining whether conduct is fraudulent and should be captured by the Act begins by looking to principles of common law fraud. However, Congress expanded upon the liability available under the False Claims Act, specifically by eliminating traditional reliance and scienter requirements of common law. Application of the Act’s statutory provisions expanding liability, coupled with use of limiting principles of materiality – routinely applied to other fraud statutes to ensure minor violations are not cognizable – balances concerns of the Act’s over-expansion with its stated purpose to broadly reach all fraudulent or deceitful acts that cause the Government to pay out money.

The full amicus brief is available here: Universal Health Services Inc v US and Massachusetts, ex rel Escobar and Correa – Brief of Law Professors as Amici.

Doctors promoting treatments on social media routinely fail to disclose ties to drug makers

by Sheila Kaplan (Statnews.com)

Washington – Physicians across the United States routinely offer medical advice on social media — but often fail to mention that they have accepted tens and sometimes hundreds of thousands of dollars from the companies that make the prescription drugs they tout.

A STAT examination of hundreds of social media accounts shows that health care professionals virtually never note their conflicts of interest, some of them significant, when promoting drugs or medical devices on sites such as Facebook, Instagram, and Twitter. The practice cuts across all specialties.

. . .

But Reuben Guttman, an attorney in Washington who specializes in food and drug law, said the system leaves patients vulnerable to misinformation.

“Doctors who accept these dollars and then turn around and promote on social media corrupt the market for honest medical information,” Guttman said. “And drug companies that pay these doctors are similarly poisoning the market for honest information.”

Read the full article at statnews.com.

A Failure of Remedies: The Case of Big Pharma (An Essay)

By Paul J. Zwier and Reuben Guttman
Emory Corporate Governance and Accountability Review
Emory Law

This Article examines the U.S. pharmaceutical industry and the harms imposed on individual patients and healthcare consumers—including private and government third party payers—from practices proscribed by Federal and State laws regulating marketing and pricing. 1

The Article pays particular attention to the False Claims Act (FCA), which has become the government’s primary civil weapon against fraudulent and/or wrongful conduct causing the expenditure of government dollars.
Read the entire Essay at http://law.emory.edu/ecgar/content/volume-3/issue-2/essays/failure-remedies-case-big-pharma.html

The Impact of Justice Scalia

Saturday 13 February, 2016 was a biting cold day in the nation’s capital that seemed like it would go down in history only for its frigid temperature. By mid-afternoon, news flashed across TV and computer screens reporting the passing of Antonin Scalia, an Associate Justice of the Supreme Court.

With three branches of government, including 535 voting members of Congress, hundreds of federal judges and countless members of the Executive Branch, it is a rare occasion when the passing of a single individual can change the course of American governance. The death of Justice Scalia was one of those occasions. In a court split sharply, five votes to four, along ideological lines, Justice Scalia was not just a part of the conservative majority; he was an outspoken leader. His ‘voice’ was heard in sometimes caustic dissents, in aggressive questioning during oral arguments when he seemingly took the role of advocate, and through his writings and interviews.

He supported efforts to restrict the court’s decision in Roe v Wade, protecting a women’s ‘right to choose’; he rejected constitutional protection of same sex marriage; he voted with the majority in Bush v Gore, effectively deciding the presidency in favour of George Bush; he voted to strike down voting rights laws and he wrote the majority opinion in District of Columbia v Heller, striking down a law banning hand guns while protecting, under the Second Amendment, the right to own firearms. He was an ‘originalist,’ meaning he said the Constitution should be interpreted from only the words written by the ‘Founding Fathers.’ This logic led him to question the court’s intervention that resulted in the de-segregation of the nation’s public schools through the 1954 decision in Brown v Board of Education. Justice Scalia’s ‘originalist’ view also meant he disregarded the contemporary context (such as the wave of shootings in public schools or the attempted assassination of President Reagan, who had appointed him) that caused legislators to press for laws banning guns. At a time when the massive wealth of corporations and a few individuals has been channelled to influence federal elections, Justice Scalia sided with the majority in Citizens United v FEC, striking down provisions of Bi-partisan Campaign Reform legislation regulating the expenditures of corporations and unions in support of political candidates.

As a part of the court’s majority, he was a key vote in procedural changes that have had a sweeping impact on American jurisprudence. Court decisions re-defining pleading standards, restricting class actions and compelling arbitration have fundamentally altered the ability of consumers, and those impacted by pervasive workplace discrimination, to bring cases and do so in an open court of law.

My colleagues across the US have, of course, spent the weekend contemplating the tenure of Justice Scalia and the impact of his passing. Nancy Gertner, a former federal judge in Boston and currently a professor at Harvard Law School, sent me the following thought after writing her own insightful piece on Justice Scalia in The Boston Globe: ‘He was at once principled, trying to see everything through the lens of originalism, and at the same time, rigid, unwilling to admit that his constitutional interpretation was distorted by his own conservative calculus.’

Robert Ahdieh, vice dean and K.H. Gyr professor of private international law at Emory University School of Law in Atlanta, noted: ‘There have been few, if any, more forceful writers among justices of the Supreme Court than Justice Scalia. Combined with his sharp intellect and his deep sense of conviction, and his service on the court will long be remembered.’

Jon Karmel, a Chicago based attorney who is one of the nation’s preeminent union-side labour lawyers, drew specific attention to the impact of the Justice’s passing on labour unions in the US: ‘Public sector unions in the United States, which enjoy a membership rate nearly five times that of private sector unions, were sure to suffer a death blow by the Supreme Court. Until yesterday.

‘In Harris v Quinn, a seemingly small case out of Illinois, the Supreme Court last year held in a decision of five votes to four that a discrete group of public employees, non-union home healthcare workers, could not be charged fair share fees because they were not ‘full-fledged’ public employees. That narrow holding was used as an invitation by the conservative majority to overrule a 1977 decision, Abood v Detroit Board of Education  a precedent that is vital to the very concept of public employee unionism. In paragraph after paragraph, page after page, the main Harris opinion written by Justice Alito sought to undermine the legitimacy of Abood. 

‘The vehicle for destroying Abood is Friedrichs v California Teachers Association, a ginned up case that rocketed out of the Ninth Circuit on the plaintiff’s consent that judgement was appropriate against her based on Abood. Oral arguments were heard last month and a decision in favour of Ms Friedrichs by five votes to four was expected in June. No more. Labour unions and working people dodged a nuclear bomb. Friedrichs would have bankrupted public sector unions, as Scott Walker did in Wisconsin, and political money spent in favour of workers and their issues would have dried up. That is the point of Right to Work and other dues attacks on unions. Until money is taken out of politics, and maybe a new Supreme Court will do just that, the political playing field cannot be one sided.’

President Obama has committed to nominating a replacement for Justice Scalia. Republican Senate Majority Leader Mitch McConnell has threatened to block the Senate confirmation process until the next president has been sworn in. The Majority Leader’s threat is perhaps the litmus test for the significance of what happened this past Saturday.

New Hampshire and Hillary’s $675k

Top trial lawyer Reuben Guttman reflects on the New Hampshire primary.

Every four years, candidates trudge through the snows of New Hampshire, courting voters to gain political legitimacy as measured by a solid showing in the nation’s first Presidential Primary. Front runners are expected to trounce the opposition and challengers must beat expectations to stay in the race. None of this is written; it is the common law of US Presidential elections as handed down by journalists, news commentators, and pundits.

From the towns of Exeter to Rochester, candidates knock on doors, and press the flesh at coffee shops, public schools, and shopping malls. They talk about those without health insurance; those who struggle under adversity to support families; and military veterans who have made personal sacrifices for their country. New Hampshire is an up close and personal experience for voter and candidate. It is also a political battle ground that has killed the hopes of front runners. President Lyndon Johnson had this experience in 1968, bowing out of a race for re-election after a poor New Hampshire showing. Four years later, New Hampshire ended the candidacy of Maine Senator Edmond Muskie when he seemingly showed weakness when tearing up during a speech in front the state’s largest newspaper, the Manchester Union Leader. Back then, the Union Leader’s Publisher, William Loeb, had political leverage exceeding his actual readership; a Union Leader endorsement was a coveted prize for those seeking New Hampshire success as a path to the Presidency.

This year marked another illustrious chapter in the history of this quintessentially American Presidential rite of passage. Hillary Clinton came into the 2016 New Hampshire primary after squeaking by her opponent, Vermont Senator Bernie Sanders, by less than a percentage point in the Iowa Caucus. She pressed the flesh in the coffee shops and on the streets as she did back in 2008 when she ran for President and scored a narrow New Hampshire Primary win over Barack Obama. Her target this time around was to win the approval of voters in a state whose median household income is $66,000. As she talked to working class families, she talked about those she met on the campaign trail and those with problems or issues that seemingly might resonate with voters. In trying to connect with voters, there is something she did not discuss; at least not on her own and not as part of her “stump speech.” She did not talk about another group of people she met on her journeys; the Wall Street bankers.

The banter between candidate Clinton and voters in the gritty New Hampshire terrain was undoubtedly in marked contrast to the banter between the former Secretary of State and the Wall Street bankers who paid her hundreds of thousands of dollars to speak at their outings. Go back in time to 2014 and the South Carolina resort city of Bluffton where Clinton was paid $225 thousand to speak at a Goldman Sachs event. That was one of three Goldman events which generated a combined $675 thousand for Clinton; three days’ “work” earned her ten times the median household income for a New Hampshire family.

From her perspective, Clinton says that she took the money because that is what Goldman paid her. No doubt this is true. But was Goldman paying to gain insight or influence?

Clinton claims that in accepting these speaking fees – and she was paid by Wall Street institutions other than Goldman — her votes or opinions were not influenced. Really? How can she be so sure? Lawyers, of course, understand the notion of conflict of interest. It is hard to really understand how monies or relationships influence human behavior and so – at least in the legal profession – conflicts of interest rules are rigid. It is no defense to maintain that although a conflict exists, “I have enough will power to resist any influence.” Of course, the legal profession not only concerns itself with actual conflict but also the appearance of conflict. People can only believe the system works if it has at least the appearance of integrity.

But do voters really care about these matters? Perhaps. The votes have been tallied; Hillary Clinton lost the 2016 New Hampshire Primary by more than 20 percentage points. Was it her speaking engagements that swayed voters? Will this resounding defeat be the death knell for a candidate who was all but coroneted? This is what makes New Hampshire so interesting; up close and personal politics just causes people to think hard and ask questions.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.