Guttman Buschner LLP

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Coronavirus can mean a death sentence to prisoners

We got used to treating people as categories, not human beings.
By Nancy Gertner

Even with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts.

In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy.

In a second federal courtroom, another judge refused pre\trial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.

Read the full article here.

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COVID-19 Will Lead to New False Claims Cases

The COVID-19 virus is inspiring new private-public relationships that will lead to a new generation of whistleblower cases under the Federal False Claims Act.

Government is injecting billions of dollars into the private sector for medical devices and necessary healthcare equipment. The private sector is now supplying everything from tests to masks and ventilators. In the massive purchase of products and services there is not a corresponding gearing-up in oversight. Whistleblowers will be essential in documenting defective products, and false billing for services or products not supplied or rendered.

The fraud will not just be limited to medical products; state and federal governments are spending billions to build temporary medical facilities and there is no doubt that there will be fraud, waste and abuse in their construction.

To keep the economy from collapsing, the government has made grants and loans worth billions of dollars. Recipients of government funds must make truthful representations on their loan or grant applications and they must continue to meet the requirements of the loan or grant for an extended period of time. The conditions of receipt of government funds are as detailed as the requirement that a recipient remain neutral in a union organizing campaign; in other words, ripe for misuse.

The bottom line; COVID-19 has created a new role for whistleblowers.

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False Claims Act: Offense and Defense

Description: Each year private citizen suits under the False Claims Act have returned billions of dollars to Federal and State treasuries. These suits leverage the government’s compliance enforcement resources and provide bounties to those individuals or entities – known as relators – who initiate them.

Who has standing to bring these suits? How are they investigated and put together? What are the pleading requirements and what role does the government play in overseeing this litigation. These issues along with relevant ethical concerns will be discussed from both the Relator and the Defendant perspective.

It is a program of particular interest to plaintiff counsel’s seeking to explore new litigation opportunities,  and defense counsel,  in-house and insurance counsel who work with clients who do direct or indirect business with the government and are subject to liability under the False Claims Act.  It is a program of particular interest to those in the healthcare, education, and defense arenas or for those involved with any client operating in whole or in part with government monies.

The False Claims Act, involving cases filed under seal on behalf of the government, presents unique challenges under the ethical rules. The program will explore these challenges with an eye toward the applicable ethical rules and considerations.

Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC (GBB). His practice involves complex litigation and class actions. He has tried and/or litigated claims involving fraud, breach of fiduciary duty, environmental derelictions, antitrust, business interference and other common law torts or statutory violations.

The International Business Times called Mr. Guttman “one of the world’s most prominent whistleblower attorneys,” and he has been recognized as a Washingtonian Top Lawyer by Washingtonian Magazine. A February 19, 2015 profile of Mr Guttman by the Boston Globe’s STAT NEWS referred to him as the “Lawyer Pharma Loves to Hate.” Citing a $98 million recovery from Community Health Systems, Inc., Law 360 named Mr. Guttman a “Health Care MVP” and profiled him in a December 1, 2014 article. Author David Dayen, writing in his Book, Chain of Title (The New Press, 2016) cited Mr. Guttman’s work on behalf of robo-signing whistleblower, Lynn Szymoniak, noting “he had won some of the largest awards in the history of the False Claims Act; there was really nobody better for the case.” Writing in their book, The Corporate Whistleblower’s Survival Guide, (Berrett-Koehler Publishers, Inc., 2011), authors Tom Devine and Tarek F. Massarani wrote that “in settling qui tam litigation, [Mr. Guttman] has aggressively and successfully negotiated for corrective action against public health and safety consequences from prescription drug fraud.” In the book, When Good Companies Go Bad, (ABC CLIO, 2014), authors Donald Beachler and Thomas Shevory profiled Mr. Guttman’s off label marketing case against Abbott labs, involving the drug Depakote, which resulted in a $1.6 billion recovery in 2012 for state and federal governments. The Spring, 2013 Cover Story for the Emory Lawyer, profiled Mr. Guttman as one of Emory Law School’s leading players in the area of complex litigation noting that “even before filing a case, Guttman’s team engages in intensive investigation, retains experts and prepares as if a trial is imminent.”

Adam S. Hoffinger is co-chair of the firm’s White Collar Defense & Government Investigations Group. Adam focuses his practice on complex civil and white collar criminal matters, including securities, health care, False Claims Act (“qui tam”), the Foreign Corrupt Practices Act (FCPA), export sanctions, criminal tax, money laundering, antitrust and bankruptcy. He conducts internal investigations on behalf of corporate boards of directors, bankruptcy trustees and public authorities. He counsels corporations and individuals in compliance matters, government investigations, and Congressional and regulatory matters. He also represents corporations and individuals in high-stakes civil litigation. Adam has defended numerous high-ranking executives and general counsel from some of the world’s largest companies, as well as high-profile staff and members of the Senate, Congress, White House and various government agencies, faced with federal and state criminal investigations and indictments. Adam is a fellow of the American College of Trial Lawyers and has successfully tried cases throughout the country.

Adam has been recognized in Chambers USA as “an absolutely fearless criminal defense lawyer” as well as for his “immense talent as a trial lawyer” and “strong advocacy skills,” in The Legal 500 US as “an aggressive trial advocate,” and in Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms and Attorneys as a “celebrated government investigations practitioner.” He has also been recognized in The Best Lawyers in America, Expert Guide to the World’s Leading White Collar Crime Lawyers, Who’s Who Legal: Business Crime Defence, Global Investigations Review, Washingtonian Magazine and Washington DC Super Lawyers. Adam was named “Government Investigations Attorney of the Year” for 2015 and “Life Sciences Star” from 2013 to 2019 in LMG Life Sciences. In addition, he was recognized in the National Law Journal’s “Hot Defense List” for his jury trial victory on behalf of a former pharmaceutical executive in a criminal case charging conspiracy and violations of the federal Anti-Kickback statute. From 1985 to 1990, Adam served as an Assistant U.S. Attorney for the Southern District of New York. He received the Director’s Award for Superior Performance from the U.S. Department of Justice (DOJ) in 1990. He is an adjunct professor at The George Washington University Law School and has been an instructor at Georgetown University Law Center’s National Institute of Trial Advocacy (NITA) since 1992. He also serves on the alumni board of the Fordham University School of Law.

Source: https://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=100277513&sc_cid=CELESQ_ws

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Sweeping Stimulus Law Is Golden Opportunity for Scam Artists

The sweeping $2 trillion economic stimulus package signed into law by President Donald Trump on March 27 will undoubtedly help millions of people in need, but it is also expected to attract its share of shady operators looking to make a fast buck.

. . .

The stimulus provides for oversight, but “there is no way that the inspector general or a board governing oversight of $500 billion will be able to monitor and detect every fraudulent representation made in furtherance of government payment,” said Reuben A. Guttman of Guttman, Buschner & Brooks PLLC, a firm that represents whistleblowers.

Democrats pushed for and secured independent oversight of $500 billion for distressed businesses, Bloomberg News reported.

False Claims Act whistleblowers will be needed to help the inspector general do the job, Guttman said.

“The government’s first instinct in an emergency is to put money out without putting guidelines into place to make sure it will be well spent,” he said. “Products like ventilators and masks will have integrity problems because of this rush.”

. . .

Source: https://news.bloomberglaw.com/federal-contracting/sweeping-stimulus-law-golden-opportunity-for-scam-artists

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Back to the future: Can Chinese doubling down and American muddling through fulfill 21st century needs for environmental governance?

Xiaofan Zhao(1) | Oran R. Young(2) | YeQi(1,5) | Dan Guttman(3,4)

Abstract
At the close of the last millennium, prominent thinkers projected that the political systems of leading economies would converge during the coming years. Yet, research has shown that China and the United States have developed distinctive institutionalized governance processes (IGPs) to address environmental issues. Can these distinctive processes persist in turbulent times? In reality, the two countries seem to be decoupling in their economic ties and diverging in political pursuit. Under the current circumstances, what can we say about the ability of the two systems to meet emerging environmental challenges of the 21st century? We argue that neither system is likely to experience fundamental change during the foreseeable future. Current developments are highlighting differences between goal-based governance strategies prominent in China and the rule-based strategies of the United States. As the urgency of solving transcendent problems like climate change rises and political tensions grow, it is essential to work with divergent systems to address common problems.

Outline
1 | INSTITUTIONALIZED GOVERNANCE PROCESSES IN CHINA AND THE UNITED STATES
2 | THE POWER OF INSTITUTIONALIZED GOVERNANCE PROCESSES
2.1 | China: The Xi administration doubles down on dominant environmental governance processes, while there is a parallel movement toward “socialist rule of law with Chinese characteristics”
2.2 | United States: Executive authority is not a substitute for law-centered practices; an emerging response features court action to reinterpret existing laws and citizen action to promote a “Green New Deal”
3 | GOAL-BASED AND RULE-BASED GOVERNANCE STRATEGIES IN CHINA AND THE UNITED STATES
3.1 | China: Hitting the targets
3.2 | United States: Making and implementing the rules
4 | STRENGTHS AND WEAKNESSES OF IGPS IN CHINA AND THE UNITED STATES
5 | CONCLUSIONS

__________________
Heading Footnotes:
1. School of Public Policy and Management, Tsinghua University, Beijing, China
2. Bren School of Environmental Science and Management, University of California (Santa Barbara), Santa Barbara, California, USA 3School of Law, Tianjin University, Tianjin, China
4. Institute of Global Public Policy, Fudan University, Shanghai, China
5. Division of Public Policy and Institute for Public Policy, Hong Kong University of Science and Technology, Kowloon, Hong Kong

The entire article may be found here and may be subject to a subscription or fee-based download.