Ted Olson Calls For Truce on Supreme Court Confirmation Battles

Ted Olson

In an opinion published on April 28, 2016, in The Wall Street Journal, A Supreme Court Challenge for Democrats, NAFUSA member Ted Olson opines,

The relentless partisan warfare over Supreme Court appointments, including the latest manifestation involving Judge Merrick Garland, is disheartening, damaging to the court and corrosive to civil discourse. The Supreme Court renders 70 to 80 decisions every year, 20% to 30% of them highly controversial. Public acceptance of contentious outcomes, even from those who strongly disagree, is important to the stability of our Republic. And the public’s willingness to accept decisions depends on the court’s moral authority, independence, reputation and integrity.

But Olson states that a truce cannot be one-sided, arguing that the Rubicon seems to have been crossed in 1987 with the Senate rejection of Robert Bork. He urges that the Republicans could make Judge Garland’s nomination a turning point, but “Democrats must make a credible commitment to keep their part of the bargain.”

If, however, a pact could be reached among responsible Republican and Democratic leaders to give well-qualified Supreme Court nominees of either party a hearing and a vote within 120-180 days of a nomination, we could start down a path toward restoring an atmosphere of respect and civility to this process—and to prospective Supreme Court justices.

Olson, a former U.S. solicitor general, spoke on Supreme Court issues at the 2013 NAFUSA conference in Washington. He is a partner at Gibson, Dunn & Crutcher.

NAFUSA Officers and Board to Meet in New Orleans

Don Washington

The NAFUSA annual spring board meeting will take place in New Orleans on May 14, 2016. The board meets twice a year: at the fall conference and in the spring. Members pay their own travel and hotel expenses. NAFUSA members in the New Orleans area are invited to join the board at related social events. Former board member Don Washington and his law firm, Jones Walker LLP, are hosting this year’s meeting. Local NAFUSA members Don Cazayoux and Jim Letten will join us for dinner, as will local U.S. Attorney Ken Polite.

NAFUSA Liaison Committee To Meet With DAG and AGAC

Greg Vega

Greg Vega

NAFUSA President Greg Vega will lead the NAFUSA Liaison Committee to Washington on May 5 to meet with Deputy Attorney General Sally Yates and the Attorney General’s Advisory Committee (AGAC) to discuss issues of mutual interest. This continues a series of meetings with Department officials which began in 2010.

The Liaison Committee is composed of President Vega, President Elect Bart Daniel, Foundation President Mike McKay, Ken Wainstein, Jenny Durkan and Executive Director Rich Rossman.

Second Guessing Medical Judgment Does Not Prove False Claims

Jack Selden

Jack Selden

NAFUSA member Jack Selden and his firm Bradley Arant Boult Cummings LLP won a significant victory this week both for their client AseraCare and for the False Claims Act (“FCA”) defense bar generally. A federal judge struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

In United States ex rel. Paradies v. AseraCare, Inc., No. 2:12-cv-245, Doc. 497 (N.D. Ala. March 31, 2016), Judge Karon Bowdre granted summary judgment for the defendant after an eight week trial, much of which consisted of conflicting expert testimony about the hospice eligibility of 123 patients. After considering the evidence presented, Judge Bowdre found that the government had failed to prove its case, as “[a] mere difference of opinion between physicians, without more, is not enough to show falsity.” Id. at 2. AseraCare Memorandum Opinion and AseraCare FINAL ORDER.

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Former U.S. Attorney Melinda Haag Returns to Orrick

Melinda Haag

Melinda Haag

NAFUSA sponsor Orrick has announced that Melinda Haag, who served as United States Attorney for the Northern District of California for the past five years, rejoined the firm as a partner on March 1. Melinda will serve as Orrick’s Global Litigation Business Unit Leader and will reside in the firm’s San Francisco office. She is also NAFUSA’s newest member.

After being nominated by President Obama and unanimously confirmed by the Senate, Melinda served as U.S. Attorney from August 2010 through September 2015. She led a team of more than 130 criminal and civil Assistant U.S. Attorneys in handling a high volume of matters that involved export enforcement, computer intrusions, intellectual property theft, international corruption, digital currency issues, securities fraud, economic crimes, national security, organized crime, public integrity and civil rights violations, among other things. Melinda served as Co-Chair of the White Collar Crime Subcommittee of the Attorney General’s Advisory Committee and was a member of the Cybersecurity and Health Care Fraud Subcommittees.

Melinda is a deeply experienced and accomplished trial lawyer and has served as lead or co-lead counsel in more than 19 jury and bench trials. She is a Fellow of the American College of Trial Lawyers and has been included on many lists of top lawyers. Melinda has consistently been named by Chambers USA as one of America’s Leading Lawyers in White Collar Crime and Government Investigations, was identified by Lawdragon as one of 500 Leading Lawyers in America, was selected twice by the Daily Journal as one of the Top 100 Lawyers in California and five years in a row as one of the Top Women Litigators in California, and was chosen by San Francisco Business Times as one of the Most Influential Bay Area Women.

“I am thrilled to return home to Orrick,” said Melinda.  “It was an extraordinary honor to serve as United States Attorney, but I was able to leave after five years knowing that the public’s interests are in the hands of an extraordinary team of lawyers who are handling some of the most important and cutting-edge cases on the DOJ’s docket. At the same time, I am excited by the growth and client results achieved by Orrick’s litigation team over the past five years. They have clearly kicked it up another notch, and I’m honored by the opportunity to lead this top-tier team.”

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Stephen Wigginton Joins Armstrong Teasdale and NAFUSA

Stephen Wigginton

Stephen Wigginton

Armstrong Teasdale, a law firm with offices across the United States and in China, announced that the NAFUSA’s newest life member, U.S. Attorney for the Southern District of Illinois Stephen R. Wigginton, joined the firm in January 2016. Wigginton, who has nearly 30 years of experience, joined the firm’s St. Louis office where he will focus on large commercial class action suits, complex litigation involving corporate malfeasance, and qui tam cases. He also has experience representing municipalities and other governmental entities as well as colleges and universities in a wide range of litigation matters.

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Bob Del Tufo, 82, Dies

Robert Del Tufo.

Robert Del Tufo.

NAFUSA member Robert J. Del Tufo, 82, died on March 2, 2016, of lung cancer. Del Tufo served as the United States Attorney for the District of New Jersey, 1977-1980 and as the New Jersey Attorney General, 1990-1993. His older brother, Raymond Del Tufo, also served as U.S. Attorney for New Jersey. Del Tufo joined Sadden, Arps, Slate, Meager & Flom in 1993, where he remained until his death.

Del Tufo attended Princeton University and Yale Law School. He was a legal secretary to Chief Justice Joseph Weintraub on the New Jersey Supreme Court from 1958 to 1960.

He is survived by his wife, Kate Del Tufo, daughters Ann Jackopin and Barbara, sons Robert J. Jr. and David, and stepdaughters Caitlin Hughes and Johanna Hunsbedt. He was predeceased by his first wife, Ann.

Funeral arrangements are pending. As is our custom, NAFUSA will request the Department of Justice to fly an American flag over Main Justice in Bob’s honor and it will be presented to his family as a token of the high regard with which Bob was held by his colleagues.

WLF Papers of Interest to NAFUSA Members

Jay Stephens

Jay Stephens

The Washington Legal Foundation is a national, non-profit, public interest law firm and policy center. NAFUSA life member Jay Stephens serves as chair to the WLF, and is counsel to the board of NAFUSA and a past president. The WLF publishes a series of “Conversations With” where Jay develops a series of questions for a written interview format.

In the Winter 2016 issue of Conversations With, Jay has a conversation with another NAFUSA member, Larry Thompson, the former Deputy Attorney General of the United States:

Conversations With: Inquiring into the Expanded Use of Deferred-Prosecution and Non-Prosecution Agreements

Larry Thompson

Larry Thompson

 

 

 

 

 

 

 

 

 

 

On February 26, 2016, WFL published an article by another NAFUSA life member, Mary Beth Buchanan:

Corporate Employees at Risk: Strategic and Practical Implications of the Yates Memo

 

Mary Beth Buchanan

Mary Beth Buchanan

 

Pamela Cochran Marsh Joins Berger Singerman and NAFUSA

Pamela Cothran Marsh

Pamela Cothran Marsh

On March 1, 2016, Berger Singerman, announced that Pamela Cothran Marsh, the former United States Attorney for the Northern District of Florida, has joined the firm as partner on the Dispute Resolution and Government & Regulatory Teams. Marsh will serve clients across the state, and she will work principally out of Berger Singerman’s Tallahassee and Miami offices. Marsh is also NAFUSA’s newest member.

As U.S. Attorney, Marsh earned a distinguished reputation for investigating and prosecuting cases relating to banking, securities, healthcare fraud, public corruption, cybersecurity, international and domestic terrorism, and human trafficking. She was the first woman to serve as a U.S. Attorney for the Northern District of Florida.

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Richter Wins Federal Jury Trial in Key Off-Label Marketing Case

John Richter

John Richter

NAFUSA life member John C. Richter won a unanimous federal jury verdict of not guilty on behalf of client Vascular Solutions, Inc. (VSI) and CEO Howard Root regarding allegations of “off-label” promotion of Vari-Lase Short Kit. With Friday’s verdict, Senior U.S. District Judge Royce Lamberth—sitting by designation in the Western District of Texas—dismissed the case, which cannot be appealed.

The verdict vindicates the company and Root, who fought the allegations in and outside court at great cost for almost five years. The allegations advanced by prosecutors at trial concerned whether VSI and Root engaged in a promotional campaign to encourage members of the company’s sales force to speak to physicians about the use of the Short Kit to treat varicose perforator veins in the leg and whether that use was outside the Short Kit’s FDA-cleared labeled indications for use and therefore an “off-label” use.  The government’s case lasted three weeks.  The defense rested without calling a witness.  After a day-and-a-half of deliberations, the jury unanimously rejected all of the prosecutors’ allegations.

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Greg Brower Appointed Deputy GC at FBI

Brower_Greg

Snell & Wilmer announced on February 15, that NAFUSA member Greg Brower, a commercial litigation partner in the firm’s Reno and Las Vegas offices, has been appointed to serve as Deputy General Counsel at the Federal Bureau of Investigation (FBI). He will assume his new role in Washington, DC in late February.

Brower has more than 20 years of experience as a “first chair” litigator. While at Snell & Wilmer, he was instrumental in the development of the firm’s gaming and white collar criminal litigation practice groups and the expansion of its corporate investigations and administrative law groups. He has also served as an adjunct professor of law at the University of Nevada, Las Vegas’s Boyd School of Law teaching courses in national security law and trial practice.

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Sandy Coats Joins Crowe & Dunlevy

Sandy Coats

Sandy Coats

Crowe & Dunlevy recently announced former United States Attorney for the Western District of Oklahoma Sanford C. Coats has joined the firm as a director in the Oklahoma City office. He serves as co-chair of the firm’s White Collar, Compliance & Investigations practice group and is a member of the Litigation & Trial practice group. He is also NAFUSA’s newest member.

“Sandy has an exceptional reputation as a talented, experienced prosecutor, and we are honored he has joined the firm,” said Kevin D. Gordon, president and CEO of the firm. “His experience during his time as U.S. Attorney for the Western District, including his background in white collar investigations, criminal and litigation work, is extraordinary and will help us provide comprehensive legal counsel to clients here in Oklahoma and across the globe.”

Nominated by President Barack Obama and confirmed by the United States Senate in 2009, Coats was U. S. Attorney for the Western District of Oklahoma for more than six years, stepping down on January 15, 2016.

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