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GBB Staff

September 7, 2020 By GBB Staff

An Overlooked Front in the Ware on COVID19: Protecting Essential Workers

A famous hockey player, Wayne Gretsky, said the key to success was: “Skate to where the puck is going, not to where it’s been.”

In this country, essential workers, who must work to keep the country going during the pandemic but often can’t work from home — first responders and health care providers, of course, but also grocery clerks, bus drivers, subway workers, utility repair people, letter carriers and warehouse workers, as well as those designated by Trump, such as workers at meat processing plants — must be shielded from the virus, not just for their own sake, but for ours.

In the last six months, we have learned much about COVID 19. It is highly contagious. It spreads in respiratory droplets when we cough, sneeze (or sing) that can travel six feet or so before falling to the ground; also by aerosols, tiny droplets mixed with the air that can linger for hours and be inhaled; it can contaminate surfaces, like door knobs. Transmission is more likely in closed, poorly ventilated spaces.

Just as problematic, the virus has an average incubation period of a bit more than a week, during which the patient has no symptoms, but is nonetheless shedding virus. Indeed, many cases of COVID 19 are so mild that people assume (or used to assume) that they had just a cold. But we know now that this virus can be lethal: more than 187,000 Americans have died so far, some under 65 without known risk factors, just eight months after the virus first appeared here.

Essential workers are in a tight spot. If they leave their job because they fear corona virus, they are barred from collecting unemployment. If they are laid off and then recalled, or if someone offers them a job and, fearing the virus, they decline, same result. If they stay home because they have symptoms, or close contact with someone sick, they don’t get paid, because they have no sick leave. Generally their wages are so low they cannot afford not to work. So some come to work despite symptoms (and of course, sick without symptoms.) If they complain, they may be fired, even though that is illegal.

Many Americans (not to mention President Trump) are impatient for the economy to re-open. Respected public health infectious disease experts like Dr. Anthony Fauci say we can manage without starting all over again in lockdown, if we are conscientious about wearing face masks, maintaining social distance of at least six feet at all times except at home (unless there are vulnerable family members), good hand hygiene, avoiding crowds and poorly ventilated indoor spaces.

But we know now that some workplaces — where thousands of workers are deemed ‘essential’ — are hotbeds of COVID19 outbreaks: meat-packing plants are the classic case. As of July 10, nearly 30,000 meatpackers were known to have been sickened by the virus, at least 100 have died and many others suffer from lingering side effects. .(There may well be more: some large employers, like Amazon, resist releasing COVID19 illness and death statistics, even to their employees.) Employers claim that they are protecting workers, but in places where people must work fast and hard, work stations are much closer than six feet and many people stand side by side, breathing hard from exertion, for hours, or must complete so many distant tasks in so few seconds that there is no time for hand washing (let alone 20 seconds as per CDC) — for these jobs, front door temperature checks and face masks are just not sufficient protection. The other precautions recommended by Dr. Fauci — at least six feet between individuals, avoiding large crowds, especially indoors, are not impossible, but they are more expensive. They would likely result in lower profits for employers, and higher prices for consumers.

Essential workers in consumer-facing workplaces — transit workers, grocery and pharmacy clerks, delivery drivers, mail carriers — also may encounter the virus often. The workplace may require masks and distancing, but sometimes customers don’t, can’t, or won’t, comply. As of May 15, more than 3865 New York transit workers had tested positive, 118 had died. As of July 23, at least 3267 postal workers were infected with the virus; 75 had died.

Unlike classic occupational injuries — carpal tunnel syndrome, broken bones, etc. — with COVID19, what starts at work doesn’t necessarily stay at work. Those infected at work take the virus wherever they go: we have now seen how quickly and stealthily the virus spreads through communities. And it works both ways: as employers remind everyone, the virus can start in the community and come to the factory. Customers who reject precautions can infect service employees and other customers — like bus drivers and their passengers. Either way — the virus doesn’t care — if the employer doesn’t take adequate precautions as required by his or her particular workplace, in a short time, a few infected workers can spread the infection to hundreds of others in the plant and the community.

Employers are the only ones with the knowledge and the means to take adequate precautions, including widespread, routine testing of asymptomatic as well as symptomatic workers, even complete shutdown for deep cleaning if necessary. Some companies I’m sure, are doing the right thing, but with others reluctant to supply any information to public authorities and employees, about how many have tested positive and who (so contact tracing is possible), it’s hard to know. Some employers insist on a doctor’s note, or a positive test obtained by the employee, to excuse him or her from work.

The situation is especially fraught because people of color make up a disproportionate share of essential employees, and they are particularly vulnerable to the virus: some have more pre-existing conditions, or limited access to health care, crowded, often multigenerational, housing conditions, poverty, limited English. The victims of COVID in the U.S. are disproportionately people of color.

The virus is the hockey puck — we must focus attention where we expect outbreaks to occur. If we continue to play catch-up, lockdowns will be more frequent and extensive.

Bad corporate behavior, which the President encourages (“the virus is under control, let get the economy roaring!!”), endangers not just essential workers, but all of us.

The failure to take all necessary precautions where COVID spreads easily is about money: profit for the employer, customer satisfaction, without risk to either companies or consumers. The people forced to risk their lives, every day, are poorly paid, inadequately protected, employees.

I don’t want anyone to risk their life for my convenience, or to enhance employers’ profits.

But this is not just my preference: it is the law in this country.

Americans have been concerned about worker safety since Upton Sinclair published his novel, The Jungle (exposing conditions in meatpacking plants!), in 1906. In 1911 Wisconsin was the first state to pass a workers’ compensation statute, which required employers to carry no-fault insurance for injury or illness contracted at work. By 1949, all the states had passed such laws, obviating the need to prove employer negligence every time a worker was injured. (Our systems were modeled on one designed by Chancellor Otto von Bismarck of Prussia in 1884.) In1936, Congress passed the National Labor Relations Act, a key part of the New Deal. That law authorized unions elected by workers to negotiate with employers about wages and working conditions.

Employers have vigorously and successfully fought these measures in the courts from then until now, seriously weakening them.

In 1970, Congress tried again. It passed, and President Nixon signed, the Occupational Safety and Health Act, which required employers to provide safe workplaces. The Act simultaneously created the Occupational Safety and Health Agency to enforce the law, by issuing standards for particular industries or hazards, investigating employee complaints, and sanctioning employers for violations. (States with a State plan approved by OSHA, with standards as high or higher than federal standards, can also take enforcement action.)

The language of the statute is crystal clear. In Section 5(a), Congress says:“ Each employer:

(1)Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or physical harm to his employees;

(2)Shall comply with occupational safety and health standards promulgated under this Act.”

This statutory provision is known as the General Duty Clause.

In OSHA’s handbook, “Worker’s Rights”, the Agency explains: “Employers must find and correct safety and health problems. OSHA further requires that employers try to eliminate or reduce hazards first by making feasible changes in working conditions — switching to safer chemicals, enclosing processes to trap harmful fumes, or using ventilation systems to clear the air are examples of effective ways to get rid of or minimize risks — rather than just relying on personal protective equipment [PPE] such as masks, gloves or earplugs.”(OSHA 3021-OGR 2017)

As of July 22, U.S. OSHA had received 6,832 complaints about failure to adequately protect workers against COVID19. State agencies received 17,013 complaints, including (but not limited to) insufficient PPE, non-compliance with the CDC’s limited guidance referenced in OSHA guidelines. As of June 9, Eugene Scalia, Secretary of Labor (and son of the late Justice) was forced to admit to Congress that since the onset of the virus, OSHA had issued only a single COVID 19 citation –to a Georgia nursing home for “failing to report the hospitalization of 6 employees within 24 hours” — categorized as the lowest level infraction — and fined the facility $6500. As of June 30, OSHA apparently closed 5522 complaints without any action — apparently without any investigation. (The reason the dates are all different is that information is scattered and scarce on the internet.) We will see what OSHA does with this one, filed by the National Nurses Union on August 24 against hospital system HCA (a for-profit Fortune 500 company for 25 years).

OSHA has issued no specific standard for COVID19 in any workplace, and apparently does not plan to. It has issued “guidance” and “recommendations”, but as the Agency makes clear, in the first sentence of its COVID19 booklet: “[t]his guidance is not a standard or regulation, and it creates no new legal obligations…The recommendations are advisory in nature…”.

However, the General Duty Clause should still be available. To cite an employer, the Agency needs to show: (1) the employer failed to keep the workplace free of a hazard to which the employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard.

Except in some circumstances for the last requirement, COVID19 seems to fill the bill easily.

Deborah Berkowitz, formerly chief of staff, then senior policy advisor, at OSHA, explained to NPR that “Secretary Scalia has said over and over again — that I don’t think they really believe that the government has a role here. They believe in real limited government.” The Agency expects employers to comply voluntarily. It says “it will exercise discretion about whether to pursue enforcement actions if companies undertake “good faith efforts” to comply with existing regulations.” (“Existing regulations” for COVID are the general regulations applicable to all businesses.) OSHA’s single citation, of a recordkeeping violation at that, tells us that despite thousands of complaints, thousands of sick workers, and a significant number of worker deaths, the Agency is satisfied with the level of employer compliance.

Congressional Republicans, don’t want to take any chances, however: they say they won’t sign another COVID relief bill without an employer liability shield. They “know” worker lawsuits about catching COVID are all frivolous. Speaker of the House Nancy Pelosi instead wants to protect workers, and the rest of us, since we know that what starts at work doesn’t stay at work. The House COVID 19 bill would require OSHA to issue emergency standards for corona virus in the workplace.

Employers would have to fund the required measures, of course, not taxpayers. Companies could pass the costs on to consumers, which would also be fair. And a responsible Federal government would help, using the Defense Production Act (DPA) (which the Trump administration has used before) to require American industry to produce all the PPE, COVID tests, reagents, swabs, gowns etc. the country needs to control the pandemic, for a fair price — cost plus a reasonable profit. The government would sell the equipment at cost to any company, government institution (first responders, schools) or other group that needed it. As Governor Cuomo noted, when we go to war, we don’t require each state to provide its own tanks.

The government can, and should, organize independent labs to speed up the results of the tests — like the electricity grid, says Dr. Atul Gawande.

This is why we have government. It was Abraham Lincoln who said that the” legitimate purpose of government is to do for a community of people, whatever they need to have done, but cannot do…for themselves…in their individual capacities.” American companies and healthcare providers — eight months in — are still short of necessary COVID19 supplies.

Anyone who thinks the free market can handle anything, even a war or a national pandemic, more efficiently than a responsible federal government working with state and local partners, has not been paying attention.

President Trump pays no attention to anything except his reelection. As for the 187,000 (and counting) COVID deaths, all he says is “It is what it is,” by which he means, change the subject, don’t you care about violence in the streets?

We need employers to adequately protect our essential workers, voluntarily if possible, by force of law if necessary. And this needs to happen quickly. The federal government must help. That will help all of us stay safe.

We say our essential employees are heroes. They should be treated as such, not like disposable equipment.

Written by Caroline Poplin, M.D., J.D. Poplin graduated from Yale Law School and practiced law with the FDA and the EPA. Currently Of Counsel & Medical Director at Guttman, Buschner, & Brooks PLLC.

June 5, 2020 By GBB Staff

The moment the police approached George Floyd, the wheels of injustice started

By NANCY GERTNER AND PAUL BUTLER | JUNE 5, 2020 | OP-ED

The tale of these arrests — one of a black man and that of four police officers — explains why there is justifiable rage on America’s streets.

On May 25, a store clerk in Minneapolis called the police because he suspected that Floyd had paid for a pack of cigarettes with a counterfeit $20 bill. But the store owner later said: “Most of the times when patrons give us a counterfeit bill, they don’t even know it’s fake.” The call should have started an investigation; that’s not what happened to Floyd.

Instead, within minutes of the police officers’ arrival, Floyd was facedown on the street, hands tied behind his back, with Derek Chauvin pressing his knee into his neck for nearly nine minutes, while two other cops restrained Floyd by pressing down on his back and legs, and the fourth officer kept distressed passersby from intervening. Floyd begged for his life, telling them that he couldn’t breathe. Soon, his body went limp and silent. He was declared dead at the hospital.

Chauvin was caught killing a man on video, while several eyewitnesses pleaded with him to stop. Yet he appeared completely calm, bored even, one hand nonchalantly in his pocket as Floyd died beneath his knee.

So casually did the cops arrest, brutalize and kill Floyd for nothing. And just as easily did Chauvin and the other three officers leave the scene of their crime. No police cars swarmed the scene to arrest the four officers. Chauvin went home that night a free man, and for the next three nights as well. The other officers were not arrested until Wednesday.

Initially, Hennepin County Dist. Atty. Mike Freeman said that there was not enough evidence to arrest anyone, adding “there is other evidence that does not support a criminal charge.” Not enough evidence? What conceivable other evidence could there have been?

There was, of course, no such benefit of the doubt given Floyd when he was arrested.

It took four days after the killing for the D.A. to arrest Chauvin and charge him with third-degree murder and manslaughter — and only after protests over George Floyd’s death began in nearly every major American city. The other three cops were not charged — even though any civilian who had helped a person charged with murder would probably have been quickly arrested.

It was not until Wednesday, after Minnesota Atty. Gen. Keith Ellison took over the case, that charges of felony aiding and abetting the murder were filed against the three officers. The charge against Chauvin was raised to second-degree murder.

Cases against cops are notoriously hard to win. The main witnesses for the prosecution are other cops and the blue wall of silence means that those officers can be uncooperative or worse — they may try to sabotage the prosecutor’s case. And, even when the evidence is overwhelming, jurors may still be hesitant to convict, because they sympathize with the officer.

These deeply embedded biases make holding cops accountable for their violence in criminal court extremely difficult.

Conversely, African American men such as George Floyd suffer from a presumption of guilt from the moment they encounter a police officer. Almost 50% of black men have been arrested by age 23, most often in connection with minor offenses that they don’t commit more frequently than white men. This arrest gap ultimately results in black men having a one in three chance of going to prison, compared with one in six for Latino men, and one in 17 for white men.

As a white former federal judge and an African American former federal prosecutor, we’ve seen these dynamics play out in courtrooms. But only one of us can imagine being treated by the police the way they treated George Floyd.

So much has to change in the criminal system and the broader society to prevent more killings of civilians at the hands of police. But we can start with the arrest.

Police should be required to issue citations in minor offenses because arrests too often escalate into tragedy. And every officer-involved death should be reviewed by an independent agency, rather than local district attorneys who often have conflicts of interest because they work with the cops every day.

The cornerstone of equal justice is treating all citizens alike. If the criminal system treated African Americans at the arrest-decision point the way it treats police suspects — such as Chauvin and his three colleagues — George Floyd would still be alive.

Nancy Gertner is a professor at Harvard Law School, a retired federal judge and Of Counsel at Guttman, Buschner & Brookes, PLLC. Paul Butler is a professor at Georgetown University Law Center and the author of “Chokehold: Policing Black Men.”

Source: https://www.latimes.com/opinion/story/2020-06-05/george-floyd-arrest-police-killing

February 3, 2020 By GBB Staff

Sentencing Insights From A Chat With Judge Nancy Gertner

By Alan Ellis |law360.com | February 2, 2020

In 1983, I asked the incoming president of the National Association of Criminal Defense Lawyers, the late Robert W. Richie of Knoxville, Tennessee, if I might chair a new committee that I was discussing with past president Gerald Goldstein, then of San Antonio, Texas, and now of Aspen, Colorado. Its task would be to represent and counsel criminal defense lawyers who were imperiled with risk of contempt, disqualification, subpoena or bar grievance arising out of their vigorous and ethical defense of their clients. It was to be called the NACDL Lawyers Assistance Strike Force.

The first client of the Strike Force was Nancy Gertner, then a prominent lawyer in Boston. Gertner and her co-counsel had been subpoenaed on the eve of trial in the U.S. District Court for the District of New Hampshire to turn over fee records from certain clients in order to show that if clients could afford top-notch lawyers, they couldn’t possibly be menial workers. (Gertner’s client was a parking attendant but had the funds to retain her.)

I flew to New Hampshire and testified on behalf of the NACDL Strike Force, which resulted in the judge’s quashing the subpoenas:

The use of the phrase chilling affect upon the role of an attorney engaged in criminal defense work by being served a subpoena in circumstances such as this is mild. To permit it would have an arctic effect with the non-salutary purpose of freezing criminal defense attorneys into inanimate ice floes, bereft of the succor of constitutional safeguards.

The monetary problems such as attorneys hiring attorneys (as we have in this case) can be better spent on pertinent matters (a lawyer’s time is his stock-in-trade). Also to be considered is the ever increasing specter of malpractice suits, the possible vindictiveness of prosecution counsel towards a successful, recalcitrant, obnoxious or obfuscating adversary, the jeopardizing of the attorney-client relationship, real or imaginary, the reluctance of capable attorneys to continue or to consider a full or partial career in the practice of criminal law and the further depletion in the paucity of capable trial lawyers because of a concatenation of events leading to abuse of process.[1]

The district court quashed the subpoenas, emphasizing the negative effect that it believed the subpoenas would have on the attorneys’ ability to defend their clients in the pending state criminal action. The court expressed concern that forced disclosure would jeopardize the attorney-client relationship at a crucial point in the defense preparation. The could also found that “[t]he actions of the U.S. Attorney are without doubt harassing” and noted that enforcement of the subpoenas in this context would deter attorneys from following a career in criminal law because of the personal and professional traumas resulting from the United States attorney’s investigatory tactics.

The government appealed, but the U.S. Court of Appeals for the First Circuit affirmed the decision.[2]

Gertner subsequently was nominated by President Bill Clinton to the U.S. District Court for the District of Massachusetts. Her nomination was strongly supported by the late Sen. Edward Kennedy, D-Mass. She served until 2011, during which time she issued numerous opinions on sentencing issues and was widely published in the area. She currently is a senior lecturer on law at Harvard Law School, where she teaches forensic science and sentencing. She is also writing a book titled “Incomplete Sentences: Gangs, Guidelines and Judges,” which is expected to be published by Beacon Press this year.

In the first of a few interviews with Judge Gertner, which took place between August and November of last year, I began by asking her why she resigned from the bench. She gave me several reasons, most of which boiled down to her frustration with the U.S. Sentencing Commission’s refusal to take any of her opinions into consideration when reworking the federal sentencing guidelines. She thought she could better contribute to ending mass incarceration by teaching law students, lawyers and federal judges at the Federal Judicial Center on sentencing. She has spoken at several NACDL continuing legal education programs, including the recent white collar program in Washington, D.C., in October 2019.

Following one of her presentations at an NACDL CLE program soon after she took the bench, I asked her what a lawyer can do when he has a serious drug client with a lengthy criminal record who was dealing significant amounts to inner city youths. “Tell me a story,” was her response. “Every client has a story.”

Many of the 30 judges whom I’ve interviewed for my Law360 series “Views From the Bench on Sentencing Representation” thought there isn’t much a lawyer can do at the sentencing hearing. [3] The judges came out on the bench with a tentative sentence already in mind. If they “moved the needle,” it was usually based on the defendant’s allocution. Judge Gertner told me she thought differently:

Whenever you have an opportunity to speak, take advantage of it. Make the sentencing hearing a public ceremony. Bring in family, friends, and supportive victims and law enforcement to the hearing. Sympathetic media also. Allocution can be very important if not written by the lawyer. On the other hand, defense counsel has to be very careful about prepping his or her client for allocution and, at a minimum, hearing what he’s going to say. Allocution can be dangerous unless the defendant is prepped.

She agreed with me that an offender’s stepping up to the plate and owning their mistake and demonstrating sincere remorse was very important. Any effort made toward restitution was one example of demonstrative remorse and carried a lot of weight with her.

Asked how she viewed mental health and substance abuse issues, Judge Gertner said that an individual who sought treatment — particularly before he or she knew he or she was under investigation — often made a positive impression on her. Mental health evaluations could be especially important when they showed what the defendant had done to make up for his or her offense. If an offender ceased criminal conduct before realizing he or she was under investigation, this also could have a huge impact on Judge Gertner’s thinking in regard to sentencing.

She entertained and welcomed reasonable sentencing recommendations by defense counsel, particularly from a lawyer who had credibility with her. Since the prosecutors generally recommended guidelines sentences, their recommendations counted for less.

When I asked her to address the government’s argument that a significant sentence should be imposed as general deterrence to others, she answered that many defendants, particularly drug offenders and gang members, know they are going to go to prison if caught. Having a felony record for others, especially white collar offenders, can be as worrisome to them as a long prison sentence.

Having taught and written on neuroscience and the law, Judge Gertner values the opinions of mental health professionals, particularly the clinicians who have treated the defendant. She agreed with me that it is a good idea to summarize the experts’ report in your sentencing memorandum and then make the experts available to the judge for questions during the sentencing hearing.

Judge Gertner also considered community service performed prior to sentencing, giving special weight to such activity if it was tailored to the crime — for example, older gang members working to dissuade younger ones from criminal activities.

Judge Gertner said she typically began focusing on the sentence she might impose as soon as she received the presentence report and sentencing memoranda of the parties, generally a week in advance of the sentencing. “Presentence memoranda were very important to me if they presented the full picture of the client, warts and all,” she explained. But 18 U.S.C. §3553 is an empty vessel to her. “It’s a nothing burger. It needs to be filled in in the sentencing memorandum.”

Character letters can be important unless they appear to have been written by the lawyer. “You should quote from the better ones in your sentencing memorandum and attach them as an exhibit. Attach others that are good that you are not quoting as a separate exhibit.”

If there were significant guidelines issues to be decided, she appreciated counsel who gave her as much time as possible to research these and other issues raised by the parties. She considered a latefiled sentencing memorandum if something came up at the last minute, although often these are submitted by bad lawyers. Sentencing videos were “ok” if not too slick.

Early and frequent contact with the probation officer can lead to a positive presentence report, Judge Gertner noted:

The PSR needs to be a megaphone for the offender. The lawyer should find out as much as possible from the probation officer assigned to the case including whether the probation officer talks to the judge prior to sentencing. … Find out if the judge meets with the probation officer and/or follows their recommendations. Learn how the judge feels about the U.S. Probation Officer or the office in general.

In the end, as with most of the judges whom I’ve interviewed, the “why” question was critically important for Judge Gertner: “Why did your client do what he or she did? I wanted to know what is going on here.”

Indeed, this was one of the reasons Judge Gertner was so vocal an outspoken critic of the guidelines:

They didn’t take into account why an offender did what he did. For example, why was a drug dealer selling his drugs? Was he doing it to support his addiction? Was he doing it to buy school supplies? Was he doing it because he was living on the street and supporting his younger siblings? The guy who is essentially living high on the hog from drug trafficking is a different offender than the guy who is selling cocaine for school supplies. Also, if this guy had an opportunity to make a living wage, perhaps he wouldn’t have had to sell drugs if this guy had neurological damage. If this is your argument, you needed to give me evidence of these mitigating factors. You couldn’t just argue it.

I asked her another “why” question: How can defense counsel can endeavor to show a judge why the defendant is unlikely to reoffender. “I found it very helpful when lawyers gave me a plan for their client’s rehabilitation. It can be even better if the defendant has embarked on rehabilitation prior to sentencing.”

The ultraconservative Charles Koch Institute, on the criminal justice reform section of its website, states that, “Jail should be reserved for people who pose a threat to public safety.” In other words, we should be sending people to prison who we are afraid of, not that we are just pissed at.

Judge Gertner agreed and suggested that’s a good point to make to a sentencing judge.

For most judges, the key questions they want answered are:

  1. Why did your client do what he did?
  2. What has he done to own his mistake and demonstrate sincere remorse?
  3. Why was the behavior out of character with an otherwise law-abiding life if it was?
  4. Why is he unlikely to do it again?
  5. Why should I cut him a break?

For Judge Gertner, it appeared that the key questions she wanted answered were: Why did your client do what he did, and why is he unlikely to do it again?

© 2020, Portfolio Media, Inc.
Original article available at law360.com .
Reprinted with permission.


[1] In re Grand Jury Matters , 593 F.Supp. 105 (D.NH. 1984).

[2] In Re Grand Jury , 751 F.2d 13 (1st Cir. 1984).

[3] See also, “What Federal Judges Want to Know at Sentencing,” The Federal Lawyer (September 2017) https://alanellis.com/views-bench-mistake-demonstrate-sincere-remorse/ and “Own the Mistake and Demonstrate Sincere Remorse,” The Federal Lawyer (September/October 2019) https://alanellis.com/news/blog/sentencing-tips/.


Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. He is the co-author of “Federal Prison Guidebook: Sentencing and Post Conviction Remedies.”

November 14, 2019 By GBB Staff

Reuben Guttman Represents Whistleblowers in $12.3 Million Settlement



Congratulations are in order for NITA faculty member and author Reuben Guttman, who successfully represented whistleblowers and the federal government in a False Claims Act filing against a Boston teaching hospital for allowing its urology department chair to book simultaneous surgeries and for billing Medicare for procedures performed by his unsupervised medical residents. Reuben, a founding member of the D.C. law firm of Guttman, Buschner & Brooks PLLC, was part of the legal team that negotiated a $12.3 million settlement for the whistleblowers.

The case involved Dr. David Samadi, a “celebrity urologist” specializing in robotic prostate surgeries. The high volume of Dr. Samadi’s procedures at Northwell Health of New York’s teaching facilities was the subject of 2017 investigation by the Boston Globe, which spurred whistleblowers to file lawsuits against the surgeon and hospital.

In a comment to The Legal Advocate, Reuben remarked, “If you think about FRE 401 as not distinguishing between direct and circumstantial evidence, the task of putting together a complex fraud case like this one is less daunting. These cases are just like a 500-piece jigsaw puzzle where you don’t have the picture on the cover of the box to guide you but do have an evolving theory for guidance.”

Reuben serves as faculty at NITA deposition programs in Seattle and Atlanta and trial skills programs in D.C. He is co-author of the United States ex rel. Rodriguez v. Hughes, et al. case files, which involve a whistleblower in the defense industry. Reuben and co-author J.C. Lore are currently writing Pretrial Advocacy, a new textbook that will be published by NITA in late 2020.

Source: https://www.nita.org/blogs/reuben-guttman-represents-whistleblowers



September 23, 2019 By GBB Staff

CLE: Mastering False Claims, Qui Tam, & Whistleblower Cases

On Demand: Understanding False Claims, Whistleblower, & Qui Tam laws has become increasingly important in recent years due to a significant expansion of whistleblower reward and protection statutes. Over the past two decades, nearly $30 billion has been recovered through Qui Tam cases under the False Claims Act, and recently the SEC’s whistleblower program has issued large awards. At the same time, recent amendments to whistleblower laws and significant decisions construing whistleblower protection laws have resulted in an increase in whistleblower litigation. The Rossdale faculty for seminar features a national authority in this evolving practice, who will describe the latest developments and cutting-edge issues in whistleblower protection, litigating & handing Qui Tam and False Claim Acts. Registration includes online access to course and reference materials that serve as a helpful guide to the numerous topics and techniques discussed in the program.

Click here to learn more about this Telephonic CLE seminar.

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