Dean Erwin Chemerinsky, the Dean of Berkeley Law has been a long time friend of NAFUSA and has given the Supreme Court Update at our 2015 conference in San Diego and at the 2019 conference in San Francisco. The Dean has introduced us to one of his colleagues, Avani Mehta Sood, Professor of Law at Berkeley. Professor Sood is conducting academic research on jury decision-making and is seeking assistance from our members. Please review her message below and we urge you to take a few moments to complete her survey.
Dear Former and Current Legal Practitioners,
I hope this message finds you and yours in good health.
I am a law professor and social psychologist, seeking your views and intuitions about different verdict formats in criminal jury cases, through an anonymous survey in the link below:
(If this hyperlink does not activate, please copy and paste the above into your browser)
I would greatly appreciate if you would take 15-20 minutes to complete this survey and forward it to any other current or former lawyers (e.g., prosecutors, defense attorneys, civil litigators) you know who might be willing to complete it too. (No specific expertise is needed for the survey—it has been designed for non-lawyers to complete as well.)
The partners of Husch Blackwell have elected Catherine Hanaway to serve as the firm’s next Chairperson, succeeding current Chairman Greg Smith, whose term ends March 31, 2021. Formerly U.S. attorney for the Eastern District of Missouri and Speaker of Missouri’s House of Representatives, Hanaway joined Husch Blackwell in 2013 and played a key role in forming—and then leading—the firm’s Government Solutions group. She will be the firm’s first female chair.
After years in firm leadership, first as chief executive officer and later as chairman, Smith will resume full time his legal practice, counseling real estate developers and other related parties in major real estate projects throughout the Midwest.
“Catherine has a proven track record in heading up large, complex organizations,” said Smith. “She is excellent at articulating goals and then executing on them, and I am confident that I am leaving this key position in very capable hands.”
Based in St. Louis, Hanaway has led Husch Blackwell litigation teams on some of the most sensitive and commercially significant matters handled by the firm, including criminal and civil investigations, complex commercial litigation and regulatory enforcement actions. As U.S. Attorney, she supervised more than 4,000 criminal, affirmative and defensive civil cases and personally tried cases to jury verdicts. She also supervised and assisted in the development of cutting-edge theories of criminal prosecution.
“I have long admired the strengths Catherine has exhibited throughout her career—grace under pressure, teamwork, and the ability to block out distractions in order to stay focused on goals,” said Husch Blackwell’s Chief Executive Paul Eberle. “She is eminently qualified and uniquely prepared to serve our law firm as chairperson.”
“It is my great privilege to serve as Husch Blackwell’s next chair,” said Hanaway. “Following on the tremendous work on my predecessor, we will continue to build on the things that have made our law firm successful: a dedication to putting our clients first, to gaining expertise in our industries of focus, and to maintaining a culture of collaboration, inclusion and professional excellence.”
Hanaway is a member of the American Bar Association’s White Collar Section, the Bar Association of Metropolitan St. Louis, the National Association of Former United States Attorneys, and the Women’s White Collar Defense Association. She holds a B.A. from Creighton University and received a J.D. from The Catholic University of America Columbus School of Law. She also serves as a member of NAFUSA’s Board of Directors.
Paul Coggins, president of NAFUSA, has released a new legal thriller, Sting Like A Butterfly, and it’s perfect for time indoors. You can order on Amazon, Barnes & Noble, and visit his author page on Goodreads.
Paul Coggins is the co-chair of the White Collar and Government Investigations Section of Locke Lord. He is the former United States Attorney for the Northern District of Texas. A Rhodes Scholar, a graduate of Harvard Law School, and a former host of a popular radio call in show, Paul is also a frequent commentator for the media, and a contributor of articles to newspapers and magazines.
Paul previously published a mystery titled The Lady is the Tiger and co-authored a nonfiction book on sports titled Out of Bounds with former Congressman Tom McMillen. The second Cash McCahill book is expected to be released next year.
NAFUSA member Herbert Stern has co-authored, along with Alan A. Winter, “Wolf: A Novel”, a novel about Adolf Hitler’s rise to power. There are lots of great reviews on Amazon, Goodreads and on March 31, 2020, Shawn Tully wrote in Fortune Magazine,
A novel about Adolf Hitler’s rise to power doesn’t sound the ideal diversion we’re all craving to escape cabin fever.
But Wolf (Skyhorse) is that rare blend that puts the reader in the limos and backrooms with the gang of diabolical villains who conned the German masses and changed the arc of history, while providing a detailed, factually meticulous account of the fifteen years of tumult leading to the birth of the Third Reich.
Wolf could be considered a “forensic thriller.” While working through its 549 pages, this Fortune writer cooped up in Manhattan’s Chelsea found himself both learning lots of new things about the stricken German spirit and economy of 1920s and early 1930s, and itching to discover where the next twist would take a cast of characters brought fully to life, including brave and lovable madams, dance hall impresarios, police chiefs, and actresses who refused to compromise their humanity- and suffered dearly for it.
Judge Stern served as the U.S. Attorney for the District of New Jersey 1971-1974. In 1962-1965, he served as an assistant district attorney in Manhattan, participating in the investigation of the assassination of Malcolm X. He also served in the Organized Crime and Racketeering Section of the U.S. Department of Justice. He was appointed by President Nixon to serve on the U.S. District Court in the district of New Jersey, serving from 1974-1987. He has authored several books on trial advocacy and Judgment in Berlin, later made into a film.
Judge Stern is a partner and founding member of Stern & Kilcullen. He earned his J.D. from the Universtiy of Chicago Law School.
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.
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.
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.
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.
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 bookwas 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 sentme the remainingunsold 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
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