Guttman, Buschner & Brooks

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A Failure of Remedies: The Case of Big Pharma (An Essay)

By Paul J. Zwier and Reuben Guttman
Emory Corporate Governance and Accountability Review
Emory Law

This Article examines the U.S. pharmaceutical industry and the harms imposed on individual patients and healthcare consumers—including private and government third party payers—from practices proscribed by Federal and State laws regulating marketing and pricing. 1

The Article pays particular attention to the False Claims Act (FCA), which has become the government’s primary civil weapon against fraudulent and/or wrongful conduct causing the expenditure of government dollars.
Read the entire Essay at http://law.emory.edu/ecgar/content/volume-3/issue-2/essays/failure-remedies-case-big-pharma.html

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New Hampshire and Hillary’s $675k

Top trial lawyer Reuben Guttman reflects on the New Hampshire primary.

Every four years, candidates trudge through the snows of New Hampshire, courting voters to gain political legitimacy as measured by a solid showing in the nation’s first Presidential Primary. Front runners are expected to trounce the opposition and challengers must beat expectations to stay in the race. None of this is written; it is the common law of US Presidential elections as handed down by journalists, news commentators, and pundits.

From the towns of Exeter to Rochester, candidates knock on doors, and press the flesh at coffee shops, public schools, and shopping malls. They talk about those without health insurance; those who struggle under adversity to support families; and military veterans who have made personal sacrifices for their country. New Hampshire is an up close and personal experience for voter and candidate. It is also a political battle ground that has killed the hopes of front runners. President Lyndon Johnson had this experience in 1968, bowing out of a race for re-election after a poor New Hampshire showing. Four years later, New Hampshire ended the candidacy of Maine Senator Edmond Muskie when he seemingly showed weakness when tearing up during a speech in front the state’s largest newspaper, the Manchester Union Leader. Back then, the Union Leader’s Publisher, William Loeb, had political leverage exceeding his actual readership; a Union Leader endorsement was a coveted prize for those seeking New Hampshire success as a path to the Presidency.

This year marked another illustrious chapter in the history of this quintessentially American Presidential rite of passage. Hillary Clinton came into the 2016 New Hampshire primary after squeaking by her opponent, Vermont Senator Bernie Sanders, by less than a percentage point in the Iowa Caucus. She pressed the flesh in the coffee shops and on the streets as she did back in 2008 when she ran for President and scored a narrow New Hampshire Primary win over Barack Obama. Her target this time around was to win the approval of voters in a state whose median household income is $66,000. As she talked to working class families, she talked about those she met on the campaign trail and those with problems or issues that seemingly might resonate with voters. In trying to connect with voters, there is something she did not discuss; at least not on her own and not as part of her “stump speech.” She did not talk about another group of people she met on her journeys; the Wall Street bankers.

The banter between candidate Clinton and voters in the gritty New Hampshire terrain was undoubtedly in marked contrast to the banter between the former Secretary of State and the Wall Street bankers who paid her hundreds of thousands of dollars to speak at their outings. Go back in time to 2014 and the South Carolina resort city of Bluffton where Clinton was paid $225 thousand to speak at a Goldman Sachs event. That was one of three Goldman events which generated a combined $675 thousand for Clinton; three days’ “work” earned her ten times the median household income for a New Hampshire family.

From her perspective, Clinton says that she took the money because that is what Goldman paid her. No doubt this is true. But was Goldman paying to gain insight or influence?

Clinton claims that in accepting these speaking fees – and she was paid by Wall Street institutions other than Goldman — her votes or opinions were not influenced. Really? How can she be so sure? Lawyers, of course, understand the notion of conflict of interest. It is hard to really understand how monies or relationships influence human behavior and so – at least in the legal profession – conflicts of interest rules are rigid. It is no defense to maintain that although a conflict exists, “I have enough will power to resist any influence.” Of course, the legal profession not only concerns itself with actual conflict but also the appearance of conflict. People can only believe the system works if it has at least the appearance of integrity.

But do voters really care about these matters? Perhaps. The votes have been tallied; Hillary Clinton lost the 2016 New Hampshire Primary by more than 20 percentage points. Was it her speaking engagements that swayed voters? Will this resounding defeat be the death knell for a candidate who was all but coroneted? This is what makes New Hampshire so interesting; up close and personal politics just causes people to think hard and ask questions.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

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Guttman: Whistleblower program will be one of the most significant national gatherings of 2016

Feb. 18 and 19, the Center for Advocacy and Dispute Resolution and the Emory Corporate Governance and Accountability Review will partner to present “Fraud Against the Government & SEC Whistleblower Actions Training.” This event will feature more than 20 authorities on fraud, including U.S. attorneys, experts from the U.S. Securities and Exchange Commission and judges.

The training will be held from 8:30 a.m. to 4 p.m. each day in Tull Auditorium, Gambrell Hall at Emory Law.

Reuben Guttman, partner with Guttman Buschner & Brooks, PLLC and senior fellow with the Center for Advocacy and Dispute Resolution, said, “We think that for would-be whistleblowers and their counsel, the Emory program will be one of the most significant national gatherings in 2016. The program will offer them an opportunity to hear directly from regulators about how they can work to maximize their contributions to federal whistleblower programs.”

Attendees can earn up to 12 CLE credits along with the Certificate of Completion of Emory University School of Law’s Advocacy and Dispute Resolution Training in Case Investigation. Registration is now open.

Featured panelists and instructors include:

  • John A. Horn, U.S. Attorney for the Northern District of Georgia
  • William M. Nettles, U.S. Attorney for the District of South Carolina
  • David Rivera, U.S. Attorney, Middle District of Tennessee
  • Sean McKessey, Director, Office of Whistleblower, U.S. Securities and Exchange Commission
  • Benjamin Singer, Chief, Securities & Financial Fraud Unit, Fraud Section, Criminal Division, U.S. Department of Justice
  • Walter Jospin, Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • William P. Hicks, Associate Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Stephen E. Donahue, Assistant Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Randy Chartash, Chief, Economic Crime Section at United States Attorney’s Office
  • Reuben Guttman, Partner, Guttman Buschner & Brooks, PLLC and Senior Fellow, Center for Advocacy and Dispute Resolution, Emory University School of Law
  • John Floyd, Partner, Bondurant Mixson & Elmore LLP
  • Michael A. Sullivan, Partner, Finch McCranie LLP
  • Sam Sheldon, Partner, Quinn, Emmanuel Urquhart & Sullivan, LLP
  • Bob Magnanini, Partner, Stone and Magnanini, LLP
  • David Bocian, Partner, Kessler, Topaz, Meltzer, Check, LLP
  • Traci Buschner, Partner, Guttman, Buschner & Brooks, PLLC
  • Christopher Haney, CPA, CFE, CHC, Forensus Group, LLC
  • Richard Harpootlian, Harpootlian Law
  • Jerry Martinj, Partner, Barrett Johnston Martin & Garrison, LLC
  • Amy Berne, Chief, Civil Division, United States Attorney’s Office, Northern District of Georgia
  • Sally Molloy, Assistant U.S. Attorney at U.S. Attorney’s Office, Northern District of Georgia
  • Paul Zwier, Professor; Director Center for Advocacy and Dispute Resolution, Emory University School of Law
  • Hon. Matt McCoyd, Magistrate Court Judge, DeKalb County; Associate Director Center for Advocacy and Dispute Resolution, Emory University School of Law

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The American presidential spectacle

Prominent US trial lawyer Reuben Guttman shares his thoughts on the spectacle that is the US presidential election.

Every four years, the world is treated to the spectacle of the Summer Olympics, where athletes run their legs in a show of skill and strength. Coinciding with this occurrence is the American presidential election, where candidates run their mouths.

The Republicans have enough candidates to stage two debates. Those candidates with lower poll ratings are relegated to sitting at what amounts to the children’s table, where – naturally – the debate starts earlier. Presumably this is so the children can be tucked in while the front runners do their business.

The Democrats only have three major candidates and are having a go at it without any children this time around.

Though hard to discern, there are strategies to these matches of American intellect. Just as an Olympic distance runner saves his or her strength for the final lap, US presidential candidates try not to burn any intellectual reserve this early in the game. Standing behind their podiums, they take notes, adjust their glasses, and give each other gimlet eye glances. The winner is the one who says the least while maintaining the optics of communicating the most.

The Republicans thrive on debating who is a real conservative, who is more electable, and who has more guns.

For their part, the Democratic debate is just as vacuous; is Bernie Sanders a socialist and what extracurricular activities are on the agenda of Hillary’s husband, the former president? The third candidate, Martin O’Malley, seems to get lost in the mix. No surprise there; when he was governor of Maryland, most Marylanders only knew that he was the governor because signs on the highways said so. Sadly, those without an automobile were left clueless.

If Martians were to invade and randomly channel surf, they might actually confuse the debates with a reality TV show. Come to think of it, the Martians would be right.

All of this is unfortunate. There are real issues. The next president will have the ability to make appointments tipping the balance of the judiciary including the Supreme Court. Obamacare is still a work in progress and the next president needs to do something about the Centers for Medicare Services, which in privatising the Medicare system allows more theft than would be sustained by an electronics store with a plate glass window during a lengthy power outage.  There is also much to discuss on the foreign policy front, including a massive trade imbalance and regulation of publicly traded companies in a global economy.

But for now, why talk specifics when we, Americans, are still tuning in to watch the spectacle?

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

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Thoughts on law in theory and reality

Sometime ago, a law student asked me whether law school adequately prepares students for the practice of law.

It seems that students study law and lawyers study fact patterns with an eye toward applying the law. The difference can be traced to the origin of the task: the law professor assigns a case to read presumably with a focus on teaching a rule of law, while the client presents a set of facts to which a lawyer must apply a rule of law.

Stick around long enough and the facts turn into repetitive patterns and the practice of law becomes a study in human nature, mistakes, challenges and ethical dilemmas. At some point the youngster carrying the casebook becomes a meld of psychologist and sociologist, a witness to the flaws, successes and conduct of government, private institutions, and people. Here are some observations:

In large corporations and those that run them, greed in its varying forms is a constant. It manifests itself in efforts to push the boundaries of the law, a calculation of the risk of being caught and, if caught, a colourable argument as to why the conduct fits within some loophole in the law. The argument need not necessarily be a logical extension of legal doctrine; it need only pose a hurdle for prosecutors, a bargaining chip if you will. Of course, ‘loophole’ is really a term used by non-lawyers to describe the law’s inability to clearly address fundamentally reprehensible conduct.

As for clients and witnesses, they seem to relish the comfort of being part of institutions. Our dog has the same level of comfort when she runs in to her dog house, where she’s protected on three sides. Yet, unlike the dog house, an institution can provide a false sense of comfort, as was the case with Enron, Tyco, and WorldCom. Employees who now face being laid-off at Turing Pharmaceutical are learning this lesson the hard way.

Institutions – as in large corporations – can also be manipulative. Think of the pharmaceutical sales representative who is unwittingly tasked with marketing drugs for unapproved purposes or the doctor who is flattered when paid to speak on behalf of a drug company, perhaps without being aware that the company is monitoring his or her prescription writing patterns and conducting return on investment analysis. Why question wrongdoing when a corporation has an internal compliance program? Surely anything bad would have been detected and abated? Not quite. Compliance programs exist in part to convince those within the institution that impropriety is not possible. The need to be accepted by the institution can also be a tide pushing against the questioning of impropriety, even when that impropriety is harmful to the employee. Think of the worker victimised by sexual harassment who continues to laud the employer. Think also of the employer tasking the marketing department to record a victimised employee’s promotion of the company as an evidentiary hedge against a potential claim.

Practice long enough and one learns that there is, as they say, always an elephant in the room. In Friedrichs v. California Teachers Association, the United States Supreme Court will soon determine whether the First Amendment is violated when employees are compelled to pay ‘agency fees’ to a public employee labour union. Yet, is this case really about the First Amendment, or curtailing the power of unions? Are cases compelling arbitration really about judicial efficiency, or protecting powerful business from public exposure for acts that impinge on safety and health? Think about it carefully and what may come into focus is the use of procedural rulings to impact substantive rights.

All of this is to say that the application and interpretation of law has context. Facts do matter and – to some degree – the application of law without regard to context is an exercise in futility. Of course, a legal education is the starting point to reach this conclusion. It just takes time.

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.