Guttman, Buschner & Brooks

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Treasury watchdog subpoenas Google to identify whistleblower

By Victoria Finkle, AmericanBanker.com

WASHINGTON — The Treasury Department’s office of the inspector general has gone to court to identify an anonymous employee at the Office of Financial Research who produced several critical online videos.

The employee reportedly posted five YouTube videos that raised concerns about discrimination and diversity problems at the research office, which is an independent bureau within Treasury.

The inspector general’s office subpoenaed Google, which owns YouTube, in February, asking for identifying information about the employee as well as for the content of two of the videos. All of the videos were removed from public view by the employee last fall, according to court filings. They were posted between May 2016 and October 2017.

. . .

Some observers noted that the Treasury inspector general’s subpoena was somewhat surprising given the content of the videos, as described by the employee.

“It strikes me as unusual that Treasury would issue this type of subpoena that would more normally be reserved for a matter of security or significant government operations that require confidentiality, not just complaints about the atmosphere,” said Justin Brooks, a founding partner at the law firm Guttman, Buschner & Brooks who works on whistleblower and employment litigation.

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Read the full article here.

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Amicus in Rose, et al, v Stephens Institute

SCOTT ROSE, et al, Plaintiffs-Appellees,
v
STEPHENS INSTITUTE, DBA Academy of Art University, Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OAKLAND
IN CASE NO. 4:09-CV-05966-PJH, HONORABLE PHYLLIS J. HAMILTON

BRIEF FOR AMICUS CURIAE NATIONAL NURSES UNITED (“NNU”) – CALIFORNIA NURSES ASSOCIATION, ET AL. IN SUPPORT OF PLAINTIFFS-APPELLEES

Amici curiae are healthcare-focused unions and policy advocates, practicing physicians, academics, and researchers: some have served as medical consultants to pharmaceutical manufacturers, including to their marketing teams. 1 Amici have seen firsthand – both in a clinical setting and in consulting capacities – the harm that can occur when manufacturers violate the Food, Drug & Cosmetics Act (“FDCA”) and False Claims Act (“FCA”) by promoting their drugs for off-label uses that have not been approved by the Food & Drug Administration and that have often been unsafe or ineffective.

Amici have a strong interest in the questions presented in this case, which are fundamental to the scope of liability under the FCA. Amici believe the FCA has fostered evidence-based medicine, prevented patient harm, and facilitated recovery of billions of dollars for the government. Amici are united by a goal to preserve the FCA as an effective tool to combat improper off-label promotion and other fraudulent conduct that causes the government to pay money not lawfully owed.

For decades, violations of the FDCA and other regulations have served as predicates for liability under the FCA in cases where the violations are material and the defendant acts with scienter to divest the government of money it does not lawfully owe. Last year, the United States Supreme Court rejected invitations to overturn Congressional intent and limit FCA liability to situations in which a defendant makes express false statements during the process of submitting claims to the government. See Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). Appellant and amici supporting Appellant seek to relitigate Escobar and ask this Court to adopt interpretations that vitiate its holdings, holdings of other Supreme Court decisions, and this Court’s existing precedent.

Amici agree that Appellees’ interpretations are consistent with the mandates of Escobar and the Supreme Court’s prior FCA decisions as well as this Court’s existing precedent. Amici submit this brief because Appellant’s contrary interpretations and the interpretations of amici such as the United States Chamber of Commerce have wide-ranging implications beyond the instant case and, if adopted, would gut the effectiveness of the False Claims Act as a tool to combat fraud.

. . . .

Amincus in Rose v Stephens Institute.

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Recovering $280 Million on the eve of trial in one of the most heavily litigated cases under the False Claims Act.

GBB recovered $280 million in a non-intervened False Claims Act case against Celgene Corporation on the eve of trial. The Complaint alleged that Celgene unlawfully marketed its drugs Thalomid and Revlimid, including for unsafe and ineffective uses, and subverted independent judgment of medical professionals through false and misleading promotion. The Complaint also alleged that Celgene paid kickbacks to medical professionals to prescribe and recommend Celgene’s drugs in violation of the Anti-Kickback Statute. The settlement is the second largest in a non-intervened case brought under the False Claims Act.

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New front in MBS litigation: Pension funds claim Ocwen breached ERISA duty

(Reuters) – If there is any silver lining to the lingering black cloud of the mortgage crisis, it’s the incredibly creative legal theories devised by investors who lost hundreds of billions of dollars in overhyped mortgage-backed securities. In a decade of MBS litigation, investors figured out how to hold banks, mortgage issuers and even credit rating agencies accountable for misrepresenting the quality of the mortgages underlying the complex instruments they were peddling. It took ingenuity and persistence, but MBS investors, including hedge funds betting on the eventual success of the litigation, managed to get past contractual and procedural obstacles to recover tens of billions of dollars.

. . .

On Monday, the trustees of a union pension fund that invested in MBS filed a prospective class action against the mortgage servicer Ocwen and related defendants, accusing them of breaching their duties to ERISA beneficiaries. And according to Brad Miller of Guttman Buschner & Brooks – a crusading former North Carolina congressman who is a leading architect of the new suit – mortgage servicers’ exposure to ERISA claims could be vast. The Ocwen suit is apparently the first of its kind, Miller told me in an email, but he is hoping it won’t be the last.

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According to the complaint, Ocwen and the other defendants were obligated, as MBS mortgage servicers, to work with homeowners to modify their mortgages rather than hurting investors by allowing homes to go into foreclosure. But the ERISA plan trustees claim Ocwen and the other defendants put their own interests ahead of the interests of MBS investors. The mortgage servicers, according to the complaint, “profited more from mortgages in default or foreclosure than from performing mortgages,” so they allegedly “sabotaged mortgage modifications and otherwise pushed struggling homeowners into needless default.”

. . .

Miller, the ex-congressman, said he expects the defendants to contest the assertion that they have ERISA duties to pension funds that invested in mortgage-backed securities. “I can’t imagine that Ocwen and other servicers won’t contest that they have a fiduciary duty, because the stakes are too high — there’s no way to square their conduct with a fiduciary duty,” he said in an email. But he said he’s confident the fund’s reading will hold up because of the authority mortgage servicers wielded in managing the pooled investments.

“Servicers have a world of discretion over mortgages,” he said. “The governing documents give them the authority to do ‘anything and everything’ they see fit. And the statutory definition is functional – not what power the person had contractually, but what power the person exercised.”

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Read the full article here.