NAFUSA Annual Conference Postponed Until 2021

 

With Covid-19 having brought the nation to a virtual standstill, the NAFUSA board of directors was forced to cancel their Spring board meeting in Austin, Texas. Instead, President Paul Coggins led the board via Zoom with it’s first virtual meeting on April 18, 2020. After reviewing the current state of the nation’s health and economic concerns, it became clear that holding our annual conference in New York City on September 30-October 2 would be impossible. Therefore, by an unanimous vote, the board decided to postpone this year’s conference and attempt to reschedule in New York in the fall of 2021.

Discussions have begun with the New York Hilton Midtown, which was planned to be the situs of this year’s conference, to schedule new dates in 2021. We also hope that the speakers we have lined up so far will join us in 2021. They include Ted Olson, Neal Katyal, Bob Fiske, Ken Starr, Charlie Savage, Chuck Rosenberg, Jay Stephens and Larry Thompson. The planning committee was also charged by the board to consider organizing a webinar in the fall, hopefully with CLE credits.

NAFUSA will offer our sponsors a choice of taking a refund of their 2020 contribututions or else carrying contributions over to the 2021 conference. Those who carry over their contributions will be listed as 2020 and 2021 sponsors. Any additional sponsors who join in 2020 will also receive the benefit of being listed for both years. Guidepost Solutions has already committed to continue as the sponsor of the opening reception in New York in 2021.

The board also agreed unanimously to recommend to the membership at large that the current slate of officers and directors be frozen through the annual conference in 2021.

Ben Glassman Joins Squire Patton Boggs

Squire Patton Boggs announced on February 20, 2020,  that former United States Attorney for the Southern District of Ohio Ben Glassman will join the firm as a partner in its Government Investigations and White Collar Practice Group. A first chair trial lawyer who tried multiple cases to jury verdict and who has argued more than 100 federal appeals, including two en banc cases, Glassman will add substantial experience to the firm’s disputes capabilities. Ben is also NAFUSA’s newest member.

 

“Ben has served his country with distinction and has earned a reputation for skill and integrity. We are delighted to welcome him back to the firm,” said chair and global CEO Mark Ruehlmann.

 

“We are thrilled that Ben has chosen to rejoin Squire Patton Boggs,” said Cincinnati office managing partner Scott Kane. “The expertise Ben gained at the Justice Department will add even greater depth to our market-leading white collar practice and will be attractive to clients facing sensitive, high-stakes matters.”

 

A graduate of Rice University and Harvard Law School, Glassman joined the U.S. Attorney’s Office in 2005 after serving as a litigation associate at Squire, Sanders & Dempsey (now Squire Patton Boggs). After becoming Acting United States Attorney in March 2016, he has served as United States Attorney for the Southern District of Ohio since his appointment to that position by Attorney General Loretta Lynch in October 2016. He previously served as First Assistant United States Attorney, Acting Criminal Chief and Appellate Chief.

 

In addition to serving as the United States Attorney for the S.D. of Ohio, Glassman served on the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee, the Heroin & Opioids, Healthcare Fraud, Domestic Terrorism, and MS-13 Working Groups, and the interagency Domestic Terrorism Executive Committee and the Ohio High Intensity Drug Trafficking Area executive board.

 

“Ben’s experience and credentials are impeccable and he is widely respected both nationally and across Ohio,” said Joe Walker, partner and head of the firm’s Government & White Collar Practice. “His addition will bring even greater positive momentum to our government investigations and white collar practice.” Added Lauren Kuley, partner and co-chair of the firm’s Supreme Court and appellate practice: “Ben’s experience and national reputation for appellate advocacy are second to none. He is an exciting addition to our team.”

 

Under Glassman’s leadership the US Attorney’s Office pursued a number of significant cases. These include: the United States’ first-ever indictment and extradition of an alleged Chinese intelligence officer for attempted economic espionage, prosecuting a global manufacturer and distributor of power systems for FCPA violations, obtaining guilty pleas from three South Korean companies for rigging bids on United States Department of Defense fuel supply contracts, prosecutions arising out of several of the most significant financial frauds in the history of Ohio and West Virginia, the first-ever federal carfentanil-trafficking case, criminal civil rights prosecutions for hate crimes and other offenses under color of state law, crimes of public corruption, and far-reaching investigations and prosecutions for exploitation of the most vulnerable.

 

Glassman commented, “Returning to Squire Patton Boggs is an exciting homecoming. The firm has top-tier white collar and litigation practices, with a deep bench of talent, including a number of former prosecutors. I am looking forward to working with clients across the firm’s national and international network of offices.”

 

Glassman stepped down as US Attorney on November 1, 2019. He will split time between the firm’s Cincinnati and Columbus offices.

  

Ben Greenberg Joins Greenberg Traurig

Benjamin Greenberg

On December 4, 2019, Global law firm Greenberg Traurig, P.A. announced it had expanded its Miami office White Collar Defense & Special Investigations Practice and Litigation Practice with the addition of Shareholder Benjamin G. Greenberg, a former  U.S. Attorney for the Southern District of Florida. Greenberg spent nearly 20 years with the U.S. Attorney’s office, and most recently served in the role of Senior Litigation Counsel. Ben is also NAFUSA’s newest member.

Greenberg is an experienced trial attorney who has tried more than 20 cases to verdict. He has handled numerous government investigations regarding issues involving the Foreign Corrupt Practices Act (FCPA), health care fraud, financial institution fraud, money laundering, the Bank Secrecy Act, the False Claims Act (FCA), and the Anti-Kickback Statute (AKS).

“It is a pleasure to welcome Ben to our team of veteran white collar defense and litigation attorneys in Miami, where he will be an asset to the Greenberg Traurig platform in Florida, around the country, and globally,” said Matthew B. Gorson, senior chairman of Greenberg Traurig.

“Ben has a long and impressive history in the Southern District of Florida, which, combined with his healthcare industry focus and cross border experience, will help clients looking for guidance in high-stakes white collar investigations involving the Department of Justice,” said Jaret L. Davis, co-managing shareholder of Greenberg Traurig’s Miami office.

Greenberg’s significant knowledge in health care fraud matters derives from his role as U.S. Attorney in Florida, which consistently ranks as the number one state in the nation for the volume of health care fraud matters, the dollars lost in them, and dollars collected in their prosecution.

“Whether it’s the threat of a government investigation or preventive counseling, Ben’s well-rounded experience will be an invaluable resource to our clients as they navigate the complexities associated with these investigations,” said Nathan J. Muyskens, co-chair of Greenberg Traurig’s Global White Collar Defense & Criminal Investigations Practice. “His arrival helps bolster our already strong capabilities in white collar defense, and internal and government investigations to meet increasing client demand.”

As the U.S. Attorney for the Southern District of Florida from March 2017 to September 2018, Greenberg served as the chief federal law enforcement officer for one of the largest and busiest offices in the country, responsible for overseeing more than 200 attorneys and close to 500 employees. In this capacity, he worked closely with the Criminal Division and the National Security Division in Washington to supervise high-profile and complex cases in South Florida. Greenberg also traveled abroad to meet with senior law enforcement officials regarding joint investigations and to develop strategies for combatting transnational crime.

Prior to assuming leadership of the office, Greenberg held a variety of senior management positions at the U.S. Attorney’s Office. As First Assistant U.S. Attorney, he actively participated in and approved major investigative and prosecutorial decisions in all areas of criminal litigation, including FCPA, white collar, money laundering, and national security cases, as well as in civil cases under the FCA and the Federal Tort Claims Act. His other roles within the U.S. Attorney’s Office for the Southern District of Florida include chief of the Narcotics Section, chief of the Special Prosecutions Section, and Deputy Chief of the Major Crimes Section.

“I thoroughly enjoyed my work in government, handling criminal and civil matters locally, nationally, and internationally. As I begin this new chapter in my career, I am excited to join one of the country’s preeminent white collar practices,” Greenberg said. “Greenberg Traurig is the perfect firm for me to deploy my knowledge and skills, as it is the only home-grown firm in South Florida with a truly global platform. I look forward to building on the firm’s robust success and utilizing my experience to advise clients regarding their most challenging legal issues.”

Greenberg received his J.D. from Georgetown University Law Center and his B.A. cum laude from the University of Pennsylvania. He also served as a law clerk for the Hon. Jon Phipps McCalla, U.S. District Court for the Western District of Tennessee.

Ben joins former United States Attorneys Sam Skinner, John Pappalardo and Troy Eid at Greenberg Traurig.

 

 

AseraCare FCA Case Settled for $1M

Jack Selden

In March 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. At the end of the eight week first phase of the trial, Judge Karon Bowdre sua sponte 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.

The Government appealed the summary judgment to the Eleventh Circuit Court of Appeals, and the Appellate Court in September 2019 issued an important opinion with potentially broad application on the issue of medical necessity in FCA cases, adopting all of the legal standards set forth by AseraCare and ultimately by the District Court.  The Eleventh Circuit held that a claim cannot be false “if the underlying clinical judgment does not reflect an objective falsehood,” and that “the mere difference of reasonable opinion between physicians, without more, as to the prognosis for a patient seeking hospice benefits does not constitute an objective falsehood.”   Nonetheless, the Eleventh Circuit vacated the summary judgment and remanded the case with a narrow mandate that the District Court reconsider its summary judgment, ensuring that it considered all evidence proffered by the Government.  In so doing, the Court stated that though it was giving the Government “the green light to once again try to persuade” the district court that a triable issue exists, “we emphasize that we do not know that this effort will succeed.”

Before the submission of summary judgment briefing on the remand, the case settled on February 27, as reported by Law 360:

 AseraCare announced Thursday that it would pay just $1 million to settle the hospice chain’s high-profile and lengthy Medicare billing dispute with the U.S. Department of Justice, which once sought more than $200 million worth of claims under the False Claims Act.

 

AseraCare unveiled the terms of the settlement, which also doesn’t require a corporate integrity agreement, one day after the parties lodged a pair of dismissal stipulations in Alabama federal court. The closely watched case has dragged on since 2008, when three AseraCare employees accused the company of overbilling Medicare for its services.

 

Jack Selden, counsel for AseraCare, told Law360 on Thursday, “When a case settles for $1 million where the claims have been for over $200 million, I think that speaks for itself.”

 

“I’m certainly quite pleased with that outcome,” he said.

Selden added that he believes the settlement reflects “that the law and the evidence was in complete support of AseraCare.”

 

AseraCare initially beat the DOJ’s claims in March 2016, but the Eleventh Circuit vacated the district court’s decision last September. In its order, the appellate court held that U.S. District Judge Karon O. Bowdre had wrongly overlooked evidence that the company withheld crucial information about patient health from doctors who certified eligibility. However, the Eleventh Circuit also agreed with AseraCare and the district court that a difference of reasonable physician’s opinions on a terminal patient’s prognosis alone doesn’t constitute falsity under the False Claims Act.

 

The government must provide evidence linking any allegedly shady practices to specific patients, the appellate panel ruled.

 

In Thursday’s announcement, AseraCare praised that opinion, saying it “provides comfort for the physicians who are making these difficult determinations related to terminally ill patients as well as the hospice providers who are reimbursed by Medicare for services for these patients.”

 

“AseraCare is grateful to have reached this settlement with the Department of Justice and is proud that perseverance produced a benefit to the hospice industry that provides more clarity under the False Claims Act,” the company said.

 

The settlement also comes about two months after Judge Bowdre declined to reopen discovery in the case, a move the DOJ had pushed for, arguing it would allow its medical expert to determine whether a “reasonable physician” could have reached the same conclusions that any of the patients at issue in the trial were terminally ill based on medical records.

 

The case also garnered attention because the government’s lead attorney on the case used to be Jeffrey Wertkin, who left the DOJ for Akin Gump Strauss Hauer & Feld LLP only to be arrested months later for stealing a sealed FCA suit and trying to sell it. Wertkin eventually pled guilty and got 2½ years in prison.

 

Notably, the litigation also involved a split trial, the use of statistical sampling and an unsuccessful effort to expel an attorney for speaking with the media, plus the fact that it went to trial in the first place, which is rare for FCA matters.

 

The case is U.S. ex rel. Paradies v. AseraCare Inc. et al., case number 2:12-cv-00245, in the U.S. District Court for the Northern District of Alabama.

“Counsel For The United States”- A Message From Prof James Eisenstein

Dear Former United States Attorney:

Some of you may know of my 1978 book, Counsel for the United States:  U.S. Attorneys in the Legal and Political Systems (Johns Hopkins University Press).  The book  was the first (and until this year the only book) to study U. S attorneys offices, providing an analytical description of their relations with judges, investigative agencies, probation officers, defense attorneys, and Main Justice.  It also examined the links with the political system, and identified how U.S. attorneys shaped public policy.

Most of the interviews for the book were conducted in 1965, with a few more in 1970-71.  I also interviewed US attorneys and AUSAs along with other federal criminal justice participants in the early 2000s.  In 2007, I attended a Seattle School of Law Forum on the 2006 firings of eight U.S. attorneys.   The Seattle University Law Review (Vol. 31, 2008), published my article, ‘The U.S. Attorney firings of 2006:  Main Justice’s Efforts in Historical Context,” https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1047&context=sulr

I have been struck by how prominently U.S. attorneys have been in the news recently, and how many appear on cable news programs as guest commentators.  Watching them, I wondered if former U.S. attorneys would be interested in my book.  When my publisher decided to cease offering it many years ago, they sent  me the remaining  unsold copies in their warehouse.   They are in pristine condition, still in the boxes sent by Johns Hopkins University Press.

Having entered the octogenarian ranks, I thought that rather than burdening my heirs with disposing of these books, it would worth finding out if former U.S. attorneys would be interested in purchasing an autographed copy on one of the brand new books.  The retail price in 1978 was $15, equivalent to $59.35 today, so I thought $50 for an autographed copy with a personal inscription would be a fair price.  Postage,  packaging and addressing come to $3.50, for a total of $53.50.

If you are interested, please respond by May 1, 2020 and provide your mailing address, the district you headed, and remittance to me by check and I will inscribe the book to you and mail it to you.

Professor James Eisenstein

164 Beacon Circle

Boalsburg, PA 16827

If you have any comments or questions, you can email me at j3e@psu.edu

Thank you.

Yours truly,

James Eisenstein, Emeritus Professor of Political Science and Criminal Justice

Penn State University

Counsel For The United States

Erin Nealy Cox Named Chair of AGAC

Attorney General William P. Barr today announced that Erin Nealy Cox, U.S. Attorney for the Northern District of Texas, has been elevated from Vice Chair to Chair of the Attorney General’s Advisory Committee (AGAC).

Attorney General Barr also announced Justin Herdman, U.S. Attorney for the Northern District of Ohio, will become the new Vice Chair.

“Erin Nealy Cox has shown herself to be a leader in the U.S. Attorney community, a fierce advocate for the rule of law who has spearheaded prosecution efforts targeting domestic abusers and other violent criminals,” said Attorney General Barr. “Justin Herdman has also been a leader at the forefront of the department’s fight against the deadly trade in fentanyl and other dangerous drugs. I am pleased to have them leading my AGAC team.”

U.S. Attorney Nealy Cox replaced former Chair, Jessie Liu who resigned this week as U.S. Attorney for the District of Columbia.

In addition, Attorney General Barr appointed U.S. Attorney John Bash to the Attorney General’s Advisory Committee.

Chuck Rosenberg to Speak in New York on The Duty of Candor to The Court

Chuck Rosenberg

NAFUSA life member Chuck Rosenberg (ED Virginia 2006-2008, Texas 2005-2006) and the former Acting Director of DEA), will return to present the 2020 ethics lecture at the annual NAFUSA conference in New York City, September 30-October 2. Chuck was scheduled to give this lecture last year at the San Francisco conference but had to cancel due to an appendectomy attack. Chuck will speak on “The Korematsu Story–The Duty of Candor to The Court”. Registration for fall conference is expected to begin in June.

Here is his preview:

In early 1942, following the Japanese attack on Pearl Harbor, FDR issued Executive Order 9066, enabling west coast military commanders to set up curfews and exclusion zones, ostensibly to protect the US against sabotage by Japanese Americans.  More than 110,000 Japanese Americans on the west coast were relocated to internment camps, primarily in the mountain west.  However, two reports – one commissioned by the State Department and one conducted by the Naval Office of Intelligence – showed that there actually was not a significant threat from Japanese Americans living on the west coast.  Indeed, for the most part, those reports showed quite the opposite and, to the extent there was a threat from Japanese Americans, it was confined to a small group of individuals largely known to the FBI and national security officials, many of whom were already under surveillance or in custody.  Further, at least two DOJ attorneys knew about the Munson and Ringle reports and believed – and put it in writing – that withholding the findings from those reports from the Supreme Court in connection with the litigation of the Hirabayashi (curfew) and Korematsu (exclusion) cases amounted to a suppression of evidence.  Those DOJ attorneys lost an internal debate to the Solicitor General, who concealed the information from the Court and misled it in oral argument in response to a direct question about the views of the USG on the threat posed by Japanese Americans.  About seven decades later, the SG’s office (led, at the time, by Neal Katyal) confessed error, acknowledging that the reports had been suppressed and that providing truthful information to the Court was not only required but might have affected the outcome.

Bill Baer Joins Brookings

NAFUSA member Bill Baer is joining the Brookings Institution as a visiting fellow in Governance Studies, where he will focus on antitrust and competition policy. Bill has served as a leader in U.S. federal antitrust enforcement for over four decades, most notably as Assistant Attorney General in charge of the Antitrust Division at the Department of Justice from 2013 to 2016 and as Director of the Bureau of Competition at the Federal Trade Commission from 1995 to 1999.

During his tenure as Assistant Attorney General, the Antitrust Division achieved numerous successes in civil and criminal enforcement. As Acting Associate Attorney General from 2016 to 2017, Bill oversaw the Antitrust, Civil, Civil Rights, Tax, and Environment and Natural Resources Divisions and led efforts to hold financial institutions accountable in the residential mortgage-backed securities crisis, securing record penalties and consumer redress.

Bill also worked at the Federal Trade Commission from 1975 to 1980 as Attorney Advisor to the Chairman and Assistant General Counsel for Legislation and Congressional Relations. In addition to his public service, Bill headed the antitrust practice at Arnold & Porter, representing a broad range of companies in U.S. and international cartel investigations, antitrust litigation, and mergers and acquisition reviews by antitrust enforcers, including the DOJ, FTC, state attorneys general, and the European Commission.

Bill was twice named by Global Competition Review as the best competition lawyer in the world; honored by Best Lawyers as the best antitrust lawyer in Washington in 2010 and 2012; and named by The National Law Journal as one of “The Decade’s Most Influential Lawyers.” In 2015, the Federal Trade Commission honored him with the Miles W. Kirkpatrick Lifetime Achievement Award. In 2017, the American Antitrust Institute presented him with the Alfred E. Kahn Award for Antitrust Achievement.

Bill received his JD in 1975 from Stanford Law School, where he served as Senior Article Editor of The Stanford Law Review, and his BA in 1972 from Lawrence University, which recently awarded him its Distinguished Alumni Achievement Award.

Kevin O’Connor Joins Carrier as VP, General Counsel & Government Relations

In early January, Carrier Corporation announced that NAFUSA life member and former board member Kevin O’Connor has been appointed as Carrier’s Vice President, General Counsel & Government Relations, responsible for both functions globally.

“Kevin joins Carrier from Point72 where he served as Chief Legal Officer for the past four years. He will be a member of Carrier’s Executive Leadership Team, reporting to me, and his appointment will be effective in early January. Kevin will be based in Palm Beach Gardens, Florida.

As a standalone company Carrier’s legal landscape will be of greater consequence than ever before. In his new role, Kevin will provide leadership for the company’s legal and regulatory affairs, ethics and compliance programs and corporate governance activities, as well as develop and execute advocacy strategies to support business growth.

Kevin is a proven leader with more than 25 years’ experience, bringing to the role a strong combination of experience in government and the private sector, including at the U.S. Securities and Exchange Commission, as U.S. Attorney for Connecticut and Associate Attorney General of the United States, serving as the third-ranking member of the Department of Justice. Before joining Point72, Kevin served as the head of Global Ethics and Compliance for United Technologies. Kevin brings strong experience to Carrier and he will be a significant asset as we transition to our future state,” said Dave Gitlin, Carrier’s President & CEO.