Guttman, Buschner & Brooks

Staff

By

How Progressives in Law Talk to America

By Reuben Guttman and Paul Zwier

“Originalism is a pretext to justify an ultraconservative agenda.”[2]“Textualism is pretext to discount context.” “The appointment of Judge Brett Kavanaugh to the Supreme Court is a step toward the demise of the administrative state.”

We are progressives, and these are lines that we have picked up from like-minded colleagues over the past several months. We progressives seem to find comfort in encapsulating our views in thematic phrases or conclusions; indeed, we even collect and covet new ones that come our way. How many of us have used the phrase “weaponizing the First Amendment” since Supreme Court Justice Elena Kagan coined that phrase in her Janus dissent?[3]

We as progressives seem to 1) view the current state-of-affairs in the Trump era as a crisis, or at least the dismal end of liberal democracy, 2) complain that the rule of law is in jeopardy, and 3) act bewildered that all Americans do not see things as we do.

Yet, perhaps this third point is precisely because we speak in a language of contempt that is only familiar to those in our “like-minded echo chamber.” And, even among those in the echo chamber, we wonder whether the words we use have either lost their meaning or do not adequately capture the principles they represent.

And who exactly is our audience? Are we trying to persuade Trump supporters to change their minds? Or are we trying to persuade independents who voted for Barack Obama, but then voted for Trump in frustration and anger over a number of real concerns: wage disparities, failed financial products that wreaked havoc on unwitting borrowers, the ever-increasing costs of health care and education, and/or the opioid crisis? Has our rhetoric ignored the grade school and high school classrooms where students formulate their views on the role of government without understanding the difficult relationship between liberty and equality?[4]

Of course in this Botox era of quick fix solutions, how does the complexity of our beliefs compete with simple, but completely wrong and racist, quick fixes like blaming our woes on immigrants and simply summarizing our goals in the phrase “Make America Great Again”? Our striving to learn from the messaging of those who have a different vision for the world has only confused our message.

For example, we call ourselves progressive, but what does that really mean? Does it mean that we still believe in liberal democracy —that there is room for both majority backed solutions and for liberty (that is, plenty of room for individuals to define for themselves what gives their lives meaning)? What has exactly changed in our society and its values that warrant change (progress)? What makes us want to abandon old ways in favor of new ones? While progressives favor change, it is not for change’s sake. We worry about the unintended consequences of any policy or program. We must therefore leave plenty of room in our rhetoric for balancing the interests of individuals with different needs, experiences, and perspectives. In sum, our challenge is to work toward the more perfect provision of health care, public education and protections that afford equality of opportunity; and at the same time we must also protect personal values with regard to religion, leisure time and other liberties.

Of course, the court plays a vital role in balancing between need for change and protections of liberty. The courts balance and adjust liberty and freedom of self-determination, but also of equality and justice, including a fair chance for success, for all. However, it is in an oral adversarial process of combatting narratives where the important balancing and weighing takes place. It is up to trial lawyers to convince a jury or other body, but we must first understand our audience to do so effectively.

As trial lawyers who are in the business of convincing others, we have learned the hard way that not everyone sees the world as we do, speaks our language, or attaches the same meaning to words and phrases that we use. For us, it is an occupational hazard to not be in constant exploration of how others view the world. We confess that taxi drivers, parking attendants, the person checking us in at the hotel, and those we have represented (from salaried to professional workers) are all part of our ever-expanding and continuing focus group. Though one of us dabbles in teaching law as an adjunct faculty member, and one of us is a full-time law school faculty member, our students and clients have been our teachers.

Among the members of our focus group, one of us has been thinking about the Lyft driver who shuttled him home from the airport recently. The Lyft driver is a Navy veteran who spent ten years as a bookkeeper at the Federal Bureau of Investigations (FBI) Quantico facility and has a son who is a police officer in California. With no pension to speak of and struggling to make ends meet, surely his views on the state of the nation had to be like ours. They were not. He said that President Donald Trump’s tax bill put more money in his pocket; getting along with Russia is a good thing (so why all the commotion?); most immigrants are hardworking, but people should not be sneaking across the border; and Hillary Clinton had her foibles, so why can’t the Democrats cut Trump some slack? He was and will continue to be a Trump supporter. He is one of the people that we progressives would have to win over, and yet, I wonder whether we speak in a language that is readily accessible or relatable to him.

Still the chaos and narcissism coming from the White House make for tough sailing for progressives. It is hard for some navigating between kindness, condescension, and contempt. Our tendency is to discuss what we believe a Kavanaugh court might mean. Or the unfairness of not letting Obama fill a seat on the Supreme Court during the last year of his term. Or the self-absorption of a president who shows little concern about Vladimir Putin hacking the 2016 presidential election, his own threat to rule of law in his tweets condemning Attorney General Jeff Sessions’ continuation of the Russia investigation, his removal of former FBI Director James Comey, and/or his insistence on “no collusion,” but that even if he colluded (that is, coordinated or otherwise assisted the Russians in interfering with the election), it is not a crime.[5] We want to ask, “When did a Trump voter’s support turn into support for a Manchurian candidate?” Our responses sometimes stray from concerns regarding our shared vulnerabilities, and are often unkind to the Lyft Driver and others who have graced our paths over the years. Even the legal scholars analyzing the laws that regulate us often show too little care for the public at large. And – of course it is tempting to join the politicians who see a fix in energizing their voting base, which can boil down to bestowing benefits or promoting and assuaging fears with little regard to the facts at issue.

Among these groups, it is the progressive lawyers and legal scholars who are seemingly the best hope to play the role as honest brokers who can provide understandable insight and guidance to those who cast votes. Indeed, there are many progressive scholars who do this well. But those who do so must do more than simply present the data, or show the illogic of Trump’s positions. Such arguments are too susceptible to the “what about” response (“What about Bill Clinton? He had an affair while he was in the White House.”) or to an anti-intellectualism that makes for an easy dismissal of the academic as being part of the elite. No, we as progressives must draw on all of our classical rhetorical skills in making the right case to the right audience.

Like any trial lawyer appealing to a jury in closing argument, political rhetoric that seeks to persuade the fair minded, or independent, citizen must pay attention to several principles. The first principle is credibility.[6] A trial lawyer’s job is to demonstrate credibility from the start of jury selection through the end of the trial. For the politician, it is a life-long endeavor. For the opinion writer or legal commentator, credibility can be demonstrated by modest reference to one’s careers and personal experiences with the subject matter.

The second principle is posing a balanced argument. Does the candidate recognize genuine fears and concerns that exist in the minds of the audience? What are the legitimate concerns about wealth disparity, immigration, health care, regulation, and education that need to be “heard” and restated before moving to reasonable, workable solutions based on facts? Does the argument appeal to more than one type of the authority—to the law, to economics, to predictions based in data (appropriately detailed), but also to values and common sense? Is the argument multifaceted, so if one basis is not understood, others will be offered to satisfy everyone? And does it build, like a John Oliver presentation—with more than just a one liner, or a “gotcha”—with a light touch, some humor, and a sincere suggestion for action? Does it take the time to use history, or even analogies drawn from songs, sayings, and sacred texts, to make the point?

The third principle is related to passion. Is the speaker’s passion appropriate—not too shrill, not too fast, not too loud, and not too angry? Does the argument contain tactical word emphasis and variation in tone to make it interesting and keep the audience from feeling attacked, and maintain sincerity throughout its delivery, like a skilled musician performing a difficult concerto?

The final principle involves genuine displaying respect and trust for the audience. Does the final appeal respect the intelligence of the audience by not telling the audience what to do, but by asking each one to decide from themselves to do what is right, and what they will be proud to tell their children they did, some years in the future?[7]

We call on our fellow academics to do more blogging and opinion writing. At the end of the day, it is the theorists in consultation with the practitioners who will study the chaos of the Trump administration, perhaps even coining new terms to capture what is happening. They look at individual moves and acts, but see how they are part of a bigger movement or shift in theory. Is the firing of Sessions like Nixon’s Saturday Night Massacre? Is it the move toward totalitarianism, in the name of nationalism? Is it the end of democracy in favor of a dictator? What does it mean about a person’s character, who even if caught lying cheating or stealing, or personally gaining from his office, will put himself above the law? Is it better to invoke history? Are we like Germans living in between World War I and World War II, in stifling poverty and unemployment, ready to blame Jews for the nation’s problems? If we see these conditions, we cannot stand down or escape to our regular scholarship. We must engage and use all the tools that our legal training has provided to us.

For now, the nation is in trouble. In words progressives understand, “the rule of law is in jeopardy.” With a critical Supreme Court nomination pending before the Senate and upcoming national elections slated for November, the big question is how we get more people to understand the nation’s peril. Maybe it is just time to really listen to each other and begin to speak in a common language. Despite these trying times, we must follow the advice that Ruth Bader Ginsberg’s mother gave her as a little girl, that showing anger never advances your cause. Instead, we must remember to take the time to establish our credibility and concede the human emotions that need be conceded. We need to be both balanced and precise in the words that we use. We need to be patient—our work is conversation by conversation, speech by speech, blog by blog. Don’t we need to continue to trust democracy—that rational discourse, step by step and case by case, will bend the arc of history toward justice?

__________________

[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, is a Board Member of the American Constitution Society, and an Adjunct Professor and Senior Fellow at Emory Law School; Paul Zwier is a Professor at Emory Law School and Director of the Emory Law Center for Advocacy and Dispute Resolution.

[2] Thomas Jefferson made the case for progressives against originalism in his letter to Samuel Kercheval:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (on file with Library of Cong.).

[3] Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting).

[4] See Arlie Russell Hochschild,Strangers in their Own Land; Anger and Mourning On the American Right, A Journey in the Heart of Our Political Divide 9 (2016). See also CNN Politics, Exit Polls, CNN (Nov. 23, 3016, 11:58 a.m.), https://www.cnn.com/election/2016/results/exit-polls (describing reasons Trump supporters provided for electing Trump).

[5] See Stephen Collinson et al., Trump Fires FBI Director James Comey, CNN (May 10, 2017, 9:44 A.M.), https://www.cnn.com/2017/05/09/politics/james-comey-fbi-trump-white-out/index.html; Philip Ewing, Trump Escalates Feud Against Jeff Sessions with New Sarcastic Tweets, NPR (Aug. 24, 2018, 11:23 A.M.), https://www.npr.org/2018/08/24/641543624/trump-escalates-feud-against-jeff-sessions-with-new-sarcastic-tweets; David Jackson, Donald Trump Says Collusion ‘Is Not a Crime,’ Insists His Campaign Did Not Collude with Russia, USA Today (July 31, 2018, 4:50 P.M.), https://www.usatoday.com/story/news/politics/2018/07/31/donald-trump-collusion-not-crime-no-collusion-russia/869821002/.

[6] See generally Aristotle, On Rhetoric: A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). Of course, Secretary Clinton was credible to a majority of the population, and maybe, however unfair, had lost her credibility not to a majority of voters in key states. See Gregory Kreig, It’s Official: Clinton Swamps Trump in Popular Vote, CNN (Dec. 22, 2016, 5:34 A.M.), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html.

[7] See Aristotle, On Rhetoric : A Theory of civil Discourse (George A. Kennedy ed., Oxford Univ. Press 1991). While some might see these as tactics or strategies, we, along with Aristotle, prefer to see them as virtues. Id. These are the virtues of the citizen performing his or her duty in the public square.

By

The Whistleblowers in the White House

I practice law. My clients have been called sneaks and snitches. I just call them “whistleblowers.” If they sue a culprit who has defrauded the government under the False Claims Act against, I might also call them “relators.”[2]

I try to explain to people that the term whistleblower is quintessentially American. It is about challenging accepted but fundamentally wrong practices; indeed, ones carried out by established or respected people or institutions, including corporations and government. And though the term “whistleblower” was coined around the activities of Ralph Nader in the 1960s and 1970s, whistleblowers have been around since the birth of our nation.[3] One need only consider challenges to British Rule and claims of taxation without representation to understand the importance of whistleblowing in our founding.

We talk about the “progressive tradition,” but isn’t that tradition about second-guessing rules that are just not right – rules like slavery, “separate but equal,” and a way of life that denied, and continues to deny, equal rights for women and minorities? And aren’t the folks who stick their necks out to make these challenges just good old American whistleblowers? No doubt though, until their complaint is vetted and their cause pressed to completion, they will be called snitches, even if, at the end of the day, their epitaphs herald them as heroes.

This week we learned that we have whistleblowers in the White House, some of whom cooperated with reporter Bob Woodward, and one of whom penned an Op Ed for the New York Times.[4] True to form, feathers have been ruffled in some circles and our President has called the work of the Op Ed author “TREASON?”[5] Some of these outcries were predicable; yet the cries for help from these particular “whistleblowers” were a bit surprising.

While we have laws that protect whistleblowers and legal channels for them to air their grievances, every now and then these channels are simply not viable; or perhaps, those who might be in a position to hear a complaint won’t listen or are not inclined to take action.[6] Specifically, Congress has seemingly failed to conduct aggressive oversight on issues ranging from the competence of the President to the administration’s foreign policy initiatives.[7]

Maybe this is what the whistleblowers in the White House understand; it is probably why they took their concerns to the only viable outlet: the American Press. After all, was the Republican legislature going to take up their cause?[8]

And like the wide receiver always in the clear to take a pass, the Free Press – another quintessentially American phenomenon – exists as the outlet for whistleblower when all else fails. No doubt, choosing that route comes with fewer statutory protections, but to be clear, whistleblowers working with the press have driven change for the better.[9]

I am a bit curious about these White House whistleblowers —particularly, the individual whose words appeared in the New York Times. I wonder about the phrase in the Op Ed hinting at the virtues of an agenda that specifically favors deregulation and perhaps even the appointment of judges deferential to the well-heeled and less receptive to those without a voice; maybe even judges who are less open to receiving a complaint challenging the status quo from say, for example, a whistleblower?

I wonder whether these whistleblowers in the White House have truly learned about what it feels to be the little guy taking on the system, always in search of a more powerful partner who will make the grievance heard. And also, I wonder when they leave the White House and go back to Corporate America whether they will be the ones calling my clients snitches.

______________

[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, and is a Senior Fellow and Adjunct Professor at Emory Law School. He is a Board Member of the American Constitution Society.

[2] See 31 U.S.C. §§ 3729-3731 (2018). Specifically, 31 U.S.C. § 3730(b) provides for “actions by private citizens” in the name of the government. Private citizens who bring these actions are known as “relators” and the caption on the complaint is styled, for example, United States ex rel Smith v. Jones Corp. The provisions of the False Claims Act that allow for private rights of action are known as the “Qui Tam” provisions. See, e.g.,31 U.S.C. § 3730(c).

[3] See William Safire, On Language; Blowing my Whistle, N.Y. Times Magazine (1983), https://www.nytimes.com/1983/02/06/magazine/on-language-blowing-my-whistle.html.

[4] See, e.g., I am Part of the Resistance Inside the Trump Administration, N.Y. Times (Sept. 5, 2018), https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html; Renae Reints, Bob Woodward’s Latest Book Reveals New Levels of Chaos in Donald Trump’s White House, Fortune(Sept. 4, 2018), http://fortune.com/2018/09/04/woodward-book-donald-trump/.

[5] See Donald J. Trump (@realDonaldJTrump), Twitter (Sept. 5, 2018, 3:15 P.M.), https://twitter.com/realdonaldtrump/status/1037464177269514240?lang=en (responding to the anonymous op ed in the New York Times).

[6] See infra, note 8. Historic examples of when government insiders have used the press because no viable internal recourse existed include Mark Felt’s (“Deep Throat”) cooperation with Bob Woodward and Carl Bernstein of the Washington Postand Daniel Ellsberg’s leaking of the Pentagon Papers. See The Most Dangerous Man in America, PBS, http://www.pbs.org/pov/mostdangerousman/timeline/ (last visited Sept. 13, 2018); The Watergate Story, Wash. Post, http://www.washingtonpost.com/wp-srv/politics/special/watergate/part1.html (last visited Sept. 13, 2018).

[7] See Kris Kolesnik, GOP Destroyed Oversight – Dems Obligated to Clean up Mess if Elected, The Hill (Sept. 11, 2018, 11:30 A.M.), http://thehill.com/opinion/campaign/405931-gop-destroyed-oversight-dems-obligated-to-clean-up-mess-if-elected.

[8] For example, any one of a number of Congressional oversight committees – if inclined – has the ability to subpoena documents and call witnesses. See generally Todd Garvey, Cong. Research Serv., Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017), https://fas.org/sgp/crs/misc/RL34097.pdf. In combination with the press, these committees have immense power of persuasion. One can only harken back to the Watergate Committees to appreciate this point. See Tevi Troy, Congressional Hearings Aren’t What They Used to Be. Here’s How to Make Them Better, Wash. Post (Oct. 21, 2015), https://www.washingtonpost.com/posteverything/wp/2015/10/21/congressional-hearings-arent-what-they-used-to-be-heres-how-to-make-them-better/?noredirect=on&utm_term=.73a4fff44fae.

[9] The Occupational Safety and Health Administration allows for redress regarding retaliation provisions written into at least twenty separate federal statutes. See Occupational Safety and Health Admin., U.S. Dep’t of Labor, OSHA Fact Sheet (2013), https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf. But the protection is for individuals who engage in protected conduct. Reporting wrongdoing to a federal agency is clearly protected conduct. What is less clear is when an individual neglects to report an issue directly to an agency and goes to the press. For example, one need only study the matter of the Pentagon Papers where Daniel Ellsberg was charged under the Espionage Act for his leaking of documents to the Washington Postand the New York Times; the charges were later dismissed because of prosecutorial misconduct. See Judge William Byrne; Ended Trial over Pentagon Papers, Wash. Post (Jan. 15, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/01/14/AR2006011401165.html. Despite the legal perils of Mr. Ellsberg, we look back over four decades on his efforts and view his conduct as having a positive impact on the process of evaluating US involvement in the Vietnam War.

By

Government by Contract: Considering a Public Service Ethics to Match the Reality of the “Blended” Public Work force

By Dan Guttman

While succeeding generations of members of Congress and presidents have vowed in the name of efficiency to shrink Big Government, the size of the federal civil service work force has remained fairly constant for decades.1 Beyond the symbolic politics surrounding philosophical differences over the appropriate size of government are the often less discussed, but fundamental issues raised by the “fourth branch” or “shadow government” which has expanded in scope and function in recent decades.2 This refers to the vast array of private contractors who work in every area of government from building weapons to writing regulations. While data on the number of civil servants is available, there is no comparable data on the number of government contractors and their employees who perform work of the kind that citizens might think of as the work of the government.3 For decades, this had been Washington’s “best kept secret” according to the late Harold Seidman, a distinguished scholar of public administration who advised both President Dwight Eisenhower and President John Kennedy when their administrations struggled with the governing implications of the growing number of government contractors.4 The most troubling aspect of the blended public-private work force resulting from “government by contract” is the challenge for accountability.

Mr. Guttman is a highly-regarded expert on third-party governance. The Shadow Government (1976) which he co-authored is recognized as a seminal study in modern government contracting. In 1978 he authored perhaps the first law journal article (in the Harvard Journal on Legislation) on modern contractor conflict-of-interest laws. He was special counsel to US Senator David Pryor in Senate investigations of the Federal government’s use of contractors to do its basic work. He has written extensively on contracting and testified many times before Congress and other public bodies on this topic. He shared in an investigative journalism award for a 2004 study of $900 billion in Defense Department contracting. As a private lawyer, Mr. Guttman’s practice has involved a broad range of areas of law.

Mr. Guttman wishes to thank the numerous scholars, students, citizens, and government and contractor employees who have helped further his understanding that led to this paper. In particular, he is greatly indebted to the late Harold Seidman, scholar and public servant, who provided seminal understanding of the evolution, and importance of, the dual sets of rules governing civil servants (and political appointees) and private citizens who perform the work of government under contract. The contents and opinions expressed in this report are those of the author who is solely responsible for any
errors or omissions.

Read the full white paper here.

By

Will High Court Ever End Circuit Split Over FCA Pleading?

The U.S. Supreme Court’s latest refusal to tackle the enduring and highly consequential circuit split over how precisely False Claims Act suits must be pled has left lawyers wondering whether justices will wade into the legal morass anytime soon.

The refusal happened on April 16 when justices shot down a petition from Johnson & Johnson, which is accused of defrauding Medicare by selling defective hip implants. J&J wanted the high court to resolve the split over Federal Rule of Civil Procedure 9(b), which requires that FCA suits be pled with “particularity.”

It marked at least the second time this term that justices swatted away an FCA petition involving 9(b). In October, the Supreme Court batted down a petition from Pennsylvania-based Victaulic Co., which allegedly violated the FCA by importing unmarked pipe fittings and falsifying import documents.

The high court’s repeated refusals have occurred despite its clear interest in the topic; twice since 2010, justices have asked the U.S. solicitor general whether to address the split, but they still haven’t pulled the trigger on a 9(b) case.

“Given recent history, it is difficult to envision a scenario in which the Supreme Court would be eager to weigh in as to how the requirements of Rule 9(b) should be applied to FCA claims in the near term,” Bass Berry & Sims PLC member Matthew Curley told Law360.

Notably, the petitions that the Supreme Court have rejected have often involved some of the country’s biggest businesses and most elite lawyers. J&J, of course, is a corporate powerhouse, and its lead counsel was appellate superstar Paul Clement of Kirkland & Ellis LLP.

If that sort of petition isn’t enough for the Supreme Court right now, then it’s hard to see any petition satisfying the court in the next few years, some observers say.

“It appears to me that there were very competent lawyers laying out the argument that the Supreme Court should address this issue, and it’s clear to me that it’s not something that’s going to be addressed in the near future,” said Reuben A. Guttman of Guttman Buschner & Brooks PLLC. “But obviously that can change.”

The central dispute over 9(b) is whether it requires whistleblowers to identify specific billing claims that were allegedly fraudulent. The Fourth, Sixth, Eighth and Eleventh Circuits usually require such specificity, while the other circuits are more tolerant of allegations that strongly suggest fraudulent billing claims must have been filed.

Attorneys differ over the scope of the split, but most agree it’s real enough to make or break cases depending solely on where they’re filed. For the plaintiffs bar, heavy-handed applications of 9(b) are unwise because they shield fraudsters simply because whistleblowers don’t have easy access to billing records.

“The lack of information on particular details when the whistleblower has plausibly alleged a scheme involving fraud on the government should not derail a case at an early stage,” Phillips & Cohen LLP partner Claire Sylvia said.

It’s also not always clear that a specific billing claim is essential to 9(b)’s main purpose, which is to provide adequate notice of fraud allegations and thereby allow a robust defense.

“The reality is that 9(b) is just a defense red herring. … It’s not a reality that they don’t know what the case is about — they’re just raising a technical argument,” Guttman said.

Defense lawyers see things much differently, arguing that whistleblowers can embark on unwarranted fishing expeditions if allowed to proceed to discovery without first identifying a single bogus billing claim.

“A relaxed or watered-down version of Rule 9(b) often allows complaints to proceed where there is no real connection between the alleged fraud scheme and any actual false claims,” Curley said.

There are different theories about why the Supreme Court hasn’t waded into the 9(b) fight. It’s possible that it has hoped the circuit split would resolve itself — something the solicitor general in 2014 said looked increasingly likely, but which has not yet happened.

It’s also possible that the Supreme Court is wary of mandating a one-size-fits-all approach that ends up torpedoing relatively strong FCA cases or unleashing relatively weak FCA cases.

“Pleading is kind of the bailiwick of the lower courts in some ways,” Morgan Verkamp LLC founding partner Rick Morgan said. “I think that the Supreme Court is concerned about appearing to cabin the discretion of the front-line judges.”

Alternatively, the right case may simply not have presented itself yet.

“I think the court looks at each petition presented by litigants and determines whether the particular case meets the criteria for meriting Supreme Court review,” Sylvia said. “I don’t think the court is looking for an FCA 9(b) case or avoiding an FCA 9(b) case.”

Whatever the reason, it won’t be long before the Supreme Court will once again have to consider delving into the circuit split. Whistleblowers earlier this month filed a petition asking the Supreme Court to resolve the 9(b) split as part of an FCA case they filed against Bristol-Myers Squibb Co. and Otsuka America Pharmaceutical Inc.

The whistleblowers — former sales representatives at Bristol-Myers — are represented by Morgan. He called the case a solid vehicle for addressing 9(b), while also acknowledging that it could join the long line of 9(b) cases that the Supreme Court has swept aside.

“We certainly think that it’s very well-founded, and that the court should be looking for a way to rationalize the 9(b) jurisprudence across the circuits,” Morgan said. “At the same time, there’s now a many-year history of the court not taking cases like this. So we put it up and see what happens.”

By Jeff Overley www.law360.com
–Additional reporting by Braden Campbell. Editing by Pamela Wilkinson and Breda Lund.

Reprinted with permission.

By

Safe Healthcare Depends on Whistleblowers

by Reuben Guttman and Traci Buschner, Partners at Guttman Buschner & Brooks, PLLC

For centuries, the integrity of healthcare delivery has been premised on the words “first do no harm” which – though not technically part of the Hippocratic Oath – seem to find their origin in teachings of the Greek Physician, Hippocrates, who lived more than two millennia ago. Whatever the origin, it is a phrase which views healthcare delivery through the eyes of the physician; the presumptive gatekeeper of healthcare delivery.

Today, it is true that physicians are still the gatekeepers. Yet, the swing of their gate is now subject to influences that are beholden to money and not medicine.

Doctors are the middlemen for drug and device manufacturers; their decisions to write prescriptions are often premised on company spin sometimes touting interpretations of cherry picked data neatly planted into publications that have the aura of reliability. This is a strategy employed by “Big Pharma” to cause product utilization well beyond the boundaries of the FDA approved package label. Factor in speaker fees to doctors to give canned speeches for thousands of dollars a pop, drug representatives who are trained to hint at ways that products can be used for purposes outside their approved indication, and company marketers who strategize about how to downplay side effects, and at the end of the day, the doctor gatekeepers are no longer able to swing their gate based on honest medical information.

If this is disturbing, consider that Wall Street and the investment bankers own an interest in hospitals, nursing homes and emergency care facilities. Pharmacy benefit managers (PBM’s) – influenced by rebates from Big Pharma – decide what drugs are going to be “preferred” by the health and welfare funds that reimburse us for our prescriptions. And did you ever wonder why more psychiatrists are writing prescriptions for drugs as opposed to engaging patients in long term therapy? The answer? It is drug company spin combined with the way insurance companies reimburse.

Here is the point; the obligation to do no harm has been compromised by non-medical monied interests that influence our health care delivery system. This we know from the efforts of whistleblowers who risked their careers to surface information that has caused most of the large pharmaceutical companies, and others in the health care delivery business, to admit to criminal violations or pay significant dollars to reimburse the Medicare and Medicaid systems for drugs, devices and treatments that were not medically justified and/or have placed patients at risk. If you think we are making this it up, check out these headlines from Department of Justice Press Releases reporting on resolution of cases initiated by whistleblowers: Abbott Labs to Pay $1.5 Billion to Resolve Criminal and Civil Investigations of Off Label Promotion of Depakote; Wyeth Pharmaceuticals Agrees to pay $490.9 million for Marketing Prescription Drug Rapamune for Unapproved Uses; Pfizer to pay $2.3 Billion for Fraudulent Marketing; Glaxco SmithKline to Plead Guilty and Pay $3 Billion to Resolve Fraud Allegations and Failure to Report Safety Data; Amgen to Pay $24.9 million to Resolve False Claims Act Allegations; Community Health Systems to Pay $98.15 Million to Resolve False Claims Act Allegations.

And it is not just the drug industry, whistleblowers have exposed the malfeasance of hospital and nursing home chains, outpatient clinics, the insurance industry and unfortunately even doctors who are sworn to do no harm.

The most valuable legal channel for whistleblowers has been the Federal False Claims Act (FCA), a statute dating back to 1864. Through statutory revisions over the years, the FCA allows individuals to sue in the name of the United States to recover monies that have been paid out because of fraudulent conduct or false statements that are made to secure payment from the government fisc. The statute imposes civil penalties and treble actual damages. And while the FCA allows for the recovery of federal dollars, over twenty states and even some cities have passed local statutes allowing for the recovery of local dollars. These statues have prudential standing requirements which limit suits to those brought by individuals or entities with information that generally cannot be found in media reports unless the whistleblower – known as a Relator – is an original source of the information, meaning that he or she has some knowledge of the wrongdoing that is independent of and materially adds to what is a matter of public record as defined by the technical terms of the statute.

Litigation under the FCA has recovered billions in federal and state dollars. More importantly – as DOJ press releases confirm — FCA litigation has surfaced pharmaceutical marketing schemes that have exposed patients to medically unnecessary drug regimens and potential hazards. FCA litigation has also exposed practices by hospitals and drug distributors that are either not medically necessary or that have placed patients at risk of harm.

For whistleblowers suing under the FCA and state/local legislative equivalents, no doubt the monied interests on Wall Street considers them snitches. Yet, these “snitches” are integral to regulatory compliance particularly – believe it or not – when the regulators themselves depend on Wall Street interests to regulate. Consider that the Center for Medicare and Medicaid Services (CMS) — in theory — is responsible for doling out trillions of dollars annually to pay for drugs, medical diagnosis, and treatment. Does CMS review each claim for reimbursement? Of course not; CMS contracts with private vendors to review claims and make payments. And for drug uses outside the FDA approved indication, these private vendors rely on other private entities – known as the “Compendia” – to ascertain whether a drug use has some level of medical acceptance. As to the Compendia, the entities that publish them may rely on the very doctors who are speakers for the drug industry.

How do we know all this? Whistleblowers! They bring the cases that stir the dirt to the surface; they expose impropriety to sunlight. They make our healthcare system safer. And no Wall Street, they are not snitches. Rather, they are integral to compliance enforcement.

*Guttman and Buschner have represented whistleblowers in cases brought under the False Claims Act against Abbott Labs, Glaxco SmithKline, Amgen, Pfizer, Wyeth, Celgene, Pharmerica, Omnicare, and Community Health Systems which collectively have returned over $5 Billion to the government.

**This is part of ACSblog’s Symposium on Whistleblowers.