So, nearly 2 years ago your organization applied for and received COVID-relief funds. The decision was not an easy one. On the one hand, government largesse invariably comes with strings and uncertainties, i.e., risk. On the other hand, your organization faced an unprecedented triple threat crisis: financial, operational, and health. Consumer spending plummeted and its consequences rippled through the economy threatening to trigger a global financial meltdown. You could not possibly have forecast how the global pandemic would affect your organization.
David Douglass is a partner in the Governmental Practice. He defends companies in criminal and civil investigations and litigation. David is a leader of the firm's Organizational Integrity Group. He is the former Managing Partner of the firm's 100-lawyer Washington, D.C. office.
The inattention some companies pay to their ethics and compliance program never ceases to surprise us. You’d think the frequency of DOJ press releases and prosecutions holding companies accountable for employee wrongdoing would be enough to scare any business into directing more resources at prevention. But alas, many businesses, often over the protestations of their under-resourced Chief Ethics and Compliance Officers (CECOs), continue to think they can get by with a minimalist approach to ethics and compliance. Our experience suggests otherwise.
Continue Reading DOJ’s Renewed Focus On Corporate Ethics & Compliance Programs Highlights Importance Of Organizational Integrity
Government enforcement efforts are on the rise. In December 2021, the Secret Service announced an initiative to more aggressively counter pandemic-related fraud. Empowered by new personnel, new funding, and new legislation, the DOJ has bolstered its antitrust enforcement efforts. Gurbir Grewal, the SEC’s new director of enforcement, shared his aggressive SOX enforcement plans in a recent PLI speech. Speaking at the ABA 36th White Collar Crime Institute, Deputy AG Lisa Monaco announced the DOJ would be re-energizing its enforcement of “white collar” wrongdoing. “Although we understand the costs that enforcement actions can place on shareholders and others,” she told the audience, “our responsibility is to incentivize responsible corporate citizenship, a culture of compliance and a sense of accountability.”…
Continue Reading Driving Cultural Change To Reduce Corporate Risk: Lessons Learned From The Field
The COVID-19 pandemic has thrown us all into a crisis of uncertainty. How does one stop a global pandemic? How long will it take to bend the contagion curve? How should the business community respond, to both the public health and financial challenges? How we as a nation, as individuals, and as businesses respond to these challenges, will reveal and test our values.
Continue Reading Leading with Values in Times of Crisis
On Thursday, March 8, Kmart Corporation inked a settlement of a False Claims Act investigation in which the qui tam relator initially alleged systematic pharmacy billing fraud across twenty-seven…
Continue Reading In Case Alleging Nationwide Pharmacy Fraud, Kmart Scores Narrow Settlement
In United States, et al., ex rel. Ruckh v. Salus Rehabilitation, LLC, et al., Case No. 8:11-cv-1303-T-23TBM (M.D. Fl. Jan. 11, 2018), a federal district court judge offered a thoughtful, cogent analysis of both the letter and spirit of the Supreme Court’s decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016) to reverse a jury’s $350 million verdict in favor of the United States and Florida (as well as the relator). The decision provides valuable guidance concerning how the Escobar holding should be applied to analyzing the actual evidence established under a False Claims Act (“FCA”) case, as distinguished from mere allegations. The lesson is that while Escobar will undoubtedly affect the standard of pleading required in motions to dismiss, its greater potential impact is on motions for summary judgment, where mere allegations without substantiating evidence will be insufficient to survive dismissal.
Continue Reading FCA Materiality: It’s One thing to Proclaim but It’s Another Thing to Prove
The Fifth Circuit recently affirmed the grant of summary judgment in favor of Omnicare, Inc., in a qui tam action alleging violations of the False Claims Act (“FCA”) and the Anti-Kickback Statute (“AKS”). The ruling signifies that, to violate the AKS, there must be unambiguous evidence that a business specifically designed its practices to induce referrals.
Continue Reading Fifth Circuit: No Anti-Kickback Violation When Defendant Merely Hopes or Expects Referrals from Benefits Designed for Other Purposes
We previously reported on a D.C. Circuit case in which a three-judge panel held that when the government is silent, there is no False Claims Act (FCA) liability for a contractor’s “objectively reasonable” interpretation of an ambiguous contract provision. The government is now seeking a rehearing en banc (a rehearing by all of the D.C. Circuit judges) in the hopes of rolling back the panel’s ruling. …
Continue Reading DOJ Seeks Rehearing in D.C. Circuit Case, Hoping to Resurrect Liability for a Contractor’s “Objectively Reasonable” Interpretation of an Ambiguous Contract Provision
With two recent False Claims Act cases (and six in the last decade), relators have taken aim at a new target for FCA enforcement and liability: Managed Care Plans. Managed Care providers should be aware of this growing threat and take steps to reduce their exposure.
Continue Reading Managed Care Plans: New Targets for Whistleblowers
In a potentially influential decision, the Federal Court for the Southern District of New York has in effect recognized a safe-harbor exception to the strict 60-day overpayment return rule, which was incorporated into the False Claims Act, 31 U.S.C. §§ 3729 et seq. (“FCA”).
Continue Reading Kane et al., v. Healthfirst, Inc., et al. Is There Now a Judicially Created Return of Over-Payment Safe Harbor?