GBB Attorneys have earned their reputation in high stakes litigation representing whistleblowers under the False Claims Act in cases resulting in the recovery of $5 Billion for Federal and State governments. They have litigated cases that have driven regulatory and legislative reform, including rules to protect school children against exposure to asbestos and legislation to compensate nuclear weapons workers who have secured a dread disease. Litigation brought by firm attorneys under Federal Environmental laws caused the Secretary of Energy to cancel a massive project to recycle and distribute into commerce radioactive metal from a Tennessee Nuclear Weapons Plant.
Litigating cases with broad sweeping social impact
The International Business Times has referred to Reuben Guttman as one of the most prominent whistleblower attorneys in the world
The International Business Times has referred to Reuben Guttman as one of the most prominent whistleblower attorneys in the world.
The Art of Advocacy
by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.
When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.
Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.
With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.
The question of what is a fact and what is a conclusion is of course a lesson that lawyers must understand. In one of my classes at Emory Law School, I asked the students to outline the good facts and bad facts for a case involving assault and robbery. A student raised his hand noting that a good fact for the Defendant is “he has an alibi.” I turned to the student and said, “Are you telling me a fact or are you giving me a conclusion?” The student looked at me. I said, “unpack what you just told me in terms of the evidence, or facts, that support the alibi.” The student then began to tell me about a witness who saw the defendant at a theater performance at the time of the alleged incident; theater tickets found in the defendant’s wallet; and a receipt from a theater vendor which had the time and date stamp on it. Of course these are three very powerful facts – often hard to dispute – which are more compelling than merely stating the conclusion that an alibi exists.
In two weeks, I will again be teaching second year students trial advocacy at Emory Law School. It is hard to explain the difference between facts and conclusions but I give them this example which, in past years, they seem to remember.
Several years ago, a seven year old girl who is the daughter of a trial lawyer, said to her father: “I hate my little brother, no one likes him, he is extremely difficult and we need to trade him in for a new brother.” The father said, “Sweetie, haven’t I told you to make your arguments with facts and not conclusions or hyperbole?” The daughter said, “Yes, I remember Daddy; I will start over. Here is a photo of your BMW and the can of spray paint used to redecorate it. Here is a photo of our dog Spot tied up in your Versace Neck Ties and I have here a photo of your 80 inch Samsung TV set and the baseball that went through the screen; I also have here an essay the little fellow wrote for school which discusses his contemporary art projects. Finally, Daddy, here is a study by a prominent Harvard Psychologist who says that parents do well to act early and trade in ill-behaved children.” The father responded: “I understand. Say no more. The little fellow is history.”
Source: American Constitution Society for Land and Policy Blog, https://www.acslaw.org/acsblog/the-art-of-advocacy
The Importance of Whistleblowers
Whistleblowers are of vital importance to regulators, helping them put the pieces of the jigsaw together, says Reuben Guttman.
Back in 2013, HSBC whistleblower, Herve Falciani, told the German publication Der Spiegel: “Banks such as HSBC have created a system for making themselves rich at the expense of society, by assisting in tax evasion and money laundering.” Conclosury statements like this are levied all the time by public interest groups, legislators, opinion writers and pundits. When they are made, they are often a matter of speculation or at most, an argument of inferences from loose facts. Of course, Herve Falciani is different. When he left HSBC in 2008, he reportedly took data from 130,000 customers. He took the facts to allow authorities to make solid claims of tax evasion; claims that can only be effectively levied with inside information.
In a global economy with complex transactions, communications occurring in multiple languages and transactions and communications made with the jargon of the industry, it is extraordinarily complicated for outside regulators to investigate and gather the facts to prove complex fraud cases. To some degree, it is analogous to a large ship attempting to navigate a harbor without a local captain available to explain where the rocks are or where the water is shallow. Or, perhaps it is like a blind person walking into a room for the first time without having any sense of where the furniture is located.
Of course regulators have the ability to access documents through a subpoena or civil and investigative demands, and they might even have the ability to ask questions under oath. But which documents do the regulators ask for? And when the questions are asked, how should the questions be worded so that regulators target the facts with the precision of a laser guided missile? Imagine an investigator questioning an HSBC official: Question:“Have you aided and abetted foreign citizens in ways that allow them to avoid paying taxes?” Answer: “No, that is not our mission … we are a bank.”
The problem is that most sophisticated lawbreakers understand the concept of a smoking gun. Never create a document that summarizes the wrongdoing for regulators. Never create a document that lays out the facts leading regulators to pinpoint the wrongdoing. And of course, in a large corporation, never create documents, rules, policies or plans that will cause the average employee to question the propriety of a corporation’s efforts. We live in an age where complex wrongdoing is orchestrated through communications and programmes which, if analysed independently, would seem harmless.
Yet, it is the whistleblower – the person inside the box – who can explain how patterns of innocent conduct, when linked together, amount to wrongful schemes involving fraud, money laundering, racketeering and tax evasion. Whistleblowers like Falciani are so critically important to regulators and without their help, regulators face a daunting task of fully understanding the schemes and pinpointing and gathering the evidence to convince a trier effect that wrongful conduct has occurred. Hence, “the importance of the whistleblower.”
Source: The Global Legal Post, 18 May 2015 http://www.globallegalpost.com/blogs/commentary/the-importance-of-whistleblowers-68342968/
