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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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.

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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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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

 

 

 

 

 

 

 

 

 

 

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

 

 

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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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.

Richter, a King & Spalding partner and former U.S. Attorney for the Western  District of Oklahoma and Acting Assistant Attorney General in charge of the Criminal Division, was joined by Michael Pauzé and Robert Hur in trying the case.  Pauzé and Hur are both former Assistant U.S. Attorneys. NAFUSA member Johnny Sutton, former U.S. Attorney for the Western District of Texas, served as local counsel for VSI on the case.

“We are gratified that after five years of investigation and three weeks of trial, the jury completely exonerated our client, Vascular Solutions, and its CEO Howard Root,” said Richter. “The verdict vindicates the First Amendment right of life sciences companies to provide truthful information about their products.”

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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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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In 2002, NAFUSA Foundation President Mike McKay was appointed to serve on a committee to advise the Seattle Catholic archbishop how to deal with the child sex abuse allegations made against Catholic priests.  The committee reviewed the files and made recommendations on particular cases.  In 2003, it issued a report that included a series of recommendations which, if followed, would decrease the number of cases occurring in the future. The archbishop rejected the report and fired the committee.

A new archbishop arrived in 2010 and appears to now be implementing, however imperfectly, some of the committee’s recommendations.  This includes the release of names of 77 priests accused of child sex abuse. See Seattle Times, January 15, 2016.

But the release of names is not enough, McKay argues, so he and other prominent Catholics are pressing the church to release the underlying files so that church members and the general public will understand the serious nature of these sexual assaults, including where they occurred. See Seattle Times, January 30, 2016.

Last week, the Seattle Times editorial board weighed in to support McKay’s position: The Archdiocese of Seattle should open its secret files on priests accused of sexually abusing minors.