Guttman, Buschner & Brooks

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The Planned Parenthood Inquiry: Another View

by Reuben A. Guttman and Caroline M. Poplin, M.D., J.D.

Guttman practices law with Guttman, Buschner & Brooks PLLC and was counsel for whistleblowers in cases involving Abbott, Pfizer, GSK, CHS and Pharmerica, among others. Poplin, M.D., J.D., is Medical Director and Of Counsel for Guttman, Buschner & Brooks PLLC and also was involved in cases against Abbott, Pfizer, GSK, CHS and Pharmerica.

In recent months, Planned Parenthood, a health care provider for low-income women, has been under the focused scrutiny of a Congressional oversight committee. Among its many healthcare services, many of which involve preventive care, Planned Parenthood also provides abortions. The organization has been accused in political circles of selling fetal tissue. Though this may be a crime, there have been no criminal indictments let alone convictions and the evidence seems flimsy, if not fabricated, with congressional oversight itself pretextual.

Of course, if Capitol Hill politicians are sincerely interested in looking into how federal dollars are being spent for preventive medicine, care for the nation’s children, and care for the infirmed and the elderly, there are real targets to focus on; targets where billions of dollars have been spent for medical care which, in some cases, has neglected the fundamental tenet that has passed from practitioner to practitioner through the ages: “first, do no harm.”
For starters, look no farther than the pharmaceutical industry where some of the world’s largest drug companies – which feed on funds from Medicare, Medicaid, and the Veterans Administration – have pled guilty to conduct that has admittedly placed lives at risk. Abbott, GlaxoSmithKline, Pfizer, and Johnson & Johnson are just a few of the names that make the list.

In 2012, Abbott Labs pled guilty to violating the Food Drug and Cosmetics Act when it off-label marketed its drug Depakote to the elderly and children for purposes outside of the drug’s FDA-approved indication. In 2013, Janssen Pharmaceuticals – a subsidiary of Johnson & Johnson which makes baby powder and other products – pled guilty to misbranding its billion dollar anti-psychotic drug, Risperdal. Through ongoing litigation and investigation, information about how that drug was marketed is still trickling out to the public and undoubtedly not completely known.

Where would Congress start an investigation? Look no further than big pharma’s representations to Wall Street analysts touting sales goals well exceeding the reasonable revenue streams from the FDA’s approved indication for the product. Juxtapose those goals with company documents challenging company sales reps to meet their “mark,” drill down on the documents showing company-sponsored Hawaiian getaways for employees who exceed sales expectations, and maybe find a few company-sponsored contests which challenge sales teams to spin marketing messages, and the story begins to come into focus. Congressional investigators might also look at big pharma strategies to plant marketing messages in “scientific publications.”

For the legislator whose campaign coffers are so dependent on big pharma dollars to make inquiry a political non-starter, there are the pharmacies that serve the nursing homes. These Long Term Care (LTC) pharmacies are responsible for prudently dispensing prescriptions and providing honest information about pharmaceutical products to the doctors who write them. Notwithstanding their obligation as medical providers, some of the LTC pharmacies – including Omnicare and Pharmerica – have paid millions to settle claims that rebates paid to them by big pharma were no more than bribes to promote a product.

Congressional oversight might start with a look at public filings with the Securities & Exchange Commission which hint at impropriety. Pharmerica’s August 2015 Form 10-K Report filed with the Securities & Exchange Commission discloses that “we currently receive rebates from certain manufacturers and distributors of pharmaceutical products for achieving targets of market share or purchase volumes. Rebates are designed to prefer, protect, or maintain a manufacturer’s products that are dispensed by the pharmacy under its formulary.” It’s actually too bad that most patients don’t think to read SEC filings, and undoubtedly most Wall Street analysts never realize that one day they too may be patients.

Last year, Community Health Systems, which operates more than 100 local hospitals, settled government charges that it schemed to admit patients from the emergency room whose admission was not necessary according to prudent medical practice.

Big pharma, corporate hospital chains, and several publicly traded LTC pharmacies have collectively paid billions to settle these cases. Some of these include repeat offenders. Pfizer and Phamerica, for example, merited new corporate integrity agreements—the corporate equivalent of a return to rehab.
In many cases, the price of wrongful conduct has been measured in the dollars that are spent on unnecessary products and services by federal and state health care plans and sometimes by private payors.

Unfortunately, where drug company promotional activity places a promotional spin on the science of medicine it is difficult, if not impossible, to unscramble and put back together the market for honest medical information. And how does one pinpoint with precision the injury – both short-term and perhaps even latent – attributable to drugs that are administered without medical necessity or prudent instructions for their use? It is indeed a problem. Not to belabor the point: These are also issues about life or the right to life worthy of Congressional oversight.

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Reuben Guttman Honored By Emory Law

On Friday, September 25th, Emory Law awarded Reuben Guttman, A founding partner of GBB,  with its Alumni Service Award  for “significant, sustained leadership and outstanding service to the Emory Law community.”   Among his other service to Emory Law, Mr. Guttman was a visiting professors at Universidad Panamericana in Mexico City training Mexican judges and practitioners on oral advocacy and trial practice, part of a U.S. State Department program in conjunction with Emory Law’s Center for Advocacy and Dispute Resolution.  Source: Emory Law News Center

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Second Circuit Crafts New Test For Unpaid Intern Claims

The Second Circuit provides employers greater freedom to implement unpaid internship programs and a stronger defense for class-action lawsuits brought by interns. But stronger protections for interns may remain in other jurisdictions and under state employment laws.

OVERVIEW
On July 2, 2014, the U.S. Court of Appeals for the Second Circuit handed down a long-anticipated decision that establishes a new standard for assessing whether interns should be classified as “employees” eligible for minimum and overtime wage. Assessing two related cases, Glatt, et al. v. Fox Searchlight Pictures, Inc., et al. and Wang, et al., v. The Hearst Corp., the Second Circuit adopted a “primary beneficiary” test and identified seven nonexclusive factors relevant to the classification of unpaid interns. In doing so, the court declined to adopt an exclusive six-factor test urged by the US Department of Labor’s (DOL) and held that “courts may consider relevant evidence beyond [their own] specified factors[.]” The Second Circuit also held that the question of an intern’s employment status is a “highly individualized inquiry,” making it more difficult for future interns who may seek to bring class-action claims against companies. Nevertheless, the decision should not be read to authorize employers carte blanche to structure their internship programs however they wish. Nor should it be read as a death knell to unpaid intern claims or intern class actions under state law or in other jurisdictions.

BACKGROUND
The Second Circuit’s decision marks the culmination of a rash of intern litigation in the U.S. District Court for the Southern District of New York and beyond. In the Glatt case, the district court had granted summary judgment in favor of the plaintiff interns and approval of class certification on June 11, 2013. By contrast, the Wang court denied the interns’ motions for summary judgment and class certification. In the two years since those decisions, a large number of intern class-action lawsuits have been filed, with mixed results. The rulings in favor of the interns and uncertainty regarding the legality of unpaid interns caused companies reevaluate their internship programs. Some companies, such as Conde Nast, even suspended their internship programs. The Second Circuit provides employers operating within its boundaries a clearer framework for the implementation of unpaid internship programs and strong precedent to defend potential or current class-action clams. But it arguably does so at the expense of interns.

INTERN CLASSICIATION IN THE SECOND CIRCUIT IN A POST-GLATT WORLD
In Glatt, the Second Circuit rejected the DOL’s test found that the DOL test, claiming that it was unpersuasive and overly rigid. The Second Circuit determined that an analysis of intern status should focus on the question of whether an intern or an employer is the “primary beneficiary” of the relationship. The court explained that this primary beneficiary test is inherently flexible because it focuses on the economic reality of the employer-intern relationship and the benefits the intern receives in exchange for his or her participation in the internship program. The court identified the following seven, non-exclusive factors to aid courts in determining whether an intern is an employee under the New York Labor Law (NYLL) and federal Fair Labor Standards Act (FLSA):

  1. The extent to which the intern and employer clearly agree that there is no expectation of compensation. Promises of compensation, express or implied, suggest the intern is an employee and entitled to such compensation.
  2. The extent to which the internship provides training similar to the training provided in an educational environment, including clinical and practical training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program via receipt of academic credit for the internship or because the training receive integrates into the intern’s formal coursework.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic year. This factor arguably counsels against summer jobs qualifying as unpaid internships.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. Thus, an understanding that the internship is to be ‘trial period’ counsels against the viability of it being unpaid.

The Second Circuit’s decision is most notable for its insistence that the company may benefit from the intern’s work without needing to pay the intern. Many interpretations of the DOL test concluded that there can be no immediate benefit to the company from the intern relationship. The decision suggests an internship in the Second Circuit may be unpaid if an intern receives an educational benefit and doesn’t serve as a direct replacement for paid employees even if the employer is also receiving a benefit from the relationship. The decision has received a great deal of criticism. For example, Suffolk University law professor David Yamada, who wrote the first law review article on unpaid internships back in 2002 opined: “All the factors they drew up were really without legal authority…They apparently decided to invent something new here, which is surprising at the appellate level.” says Yamada.

CLASS CERTIFICATION IN A POST-GLATT WORLD
The Second Circuit also dealt a blow to intern rights by refusing to certify the Fox interns as a class. The Second Circuit declared that “an intern’s employment status is a highly individualized inquiry” not conducive to class-action treatment. The court noted that even if a plaintiff could establish that its employer had a policy of replacing paid employees with unpaid interns, that fact alone would not mean that each intern in the putative class would prevail under the primary beneficiary test. The decision makes little sense as it stands to reason the job experience is the same or similar for all interns performing the same tasks. The Second Circuit’s directive that a trial court must conduct an individualized fact-specific inquiry could make it more difficult for future cases brought by interns to proceed on a class basis, but the court did make it clear that it is possible for a class to be certified under the appropriate circumstances. In doing so, the Second Court left the door open for interns to bring wage and hour representative on a representative basis.

IMPLICATIONS FOR WORKERS AND EMPLOYERS
Employers may consider expanding the scope of existing internship programs or implementing a new unpaid internship program. Any such expansion should be approached cautiously and employers should carefully assess all relevant law. Despite the Second Circuit’s guidance, engaging unpaid interns remains risky. This is particularly true for employers operating outside the Second Circuit where the Second Circuit’s test does not have the force of law. Additionally, at least one state has written the U.S. Department of Labor’s test that the Second Circuit rejected into law. In passing anti-discrimination protections for interns, the Connecticut legislature defined an intern as an “individual who performs work for an employer for the purposes of training,” if and only if:

  • the employer is not committed to hire the individual performing the work at the conclusion of the
    training period;
  • the employer and the individual performing the work agree that the individual performing the work
    is not entitled to wages for the work performed;
  • the work performed: (a) supplements training given in an educational environment that may
    enhance the future employability of the individual; (b) provides experience for the
    benefit of the individual; (c) individual does not displace any current employee of the employer; (d)
    is performed under the supervision of the employer or an employee of the employer; and (e)
    provides no immediate advantage to the employer providing the training and may
    occasionally impede the operations of the employer.

Thus, in Connecticut, wage and hour protections afforded under state statute may apply to interns when no such rights attach under the FLSA. The same may be true in other states. Workers should consult competent counsel if they think their employer has treated them improperly.

CONTACTS
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact Justin Brooks at jbrooks@gbblegal.com.

GBB’s experienced team of attorneys can assist employees who wish to vindicate their rights and provide counseling to companies seeking to comply with employment laws.

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The Art of Advocacy

by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

When the United States Supreme Court issued its decisions in Bell Atlantic Corp v Twombly, 550 U.S. 544 (2007) and Ashcroft v Iqbal, 556 U.S. 662 (2009), there was sea change in the standard by which judges evaluated lawsuits to determine their sufficiency to withstand a motion to dismiss. Rather than merely placing a defendant on notice of a claim, the Court established a new standard. Plaintiffs must allege facts allowing a court to find that a claim is plausible. In reviewing the allegations of the complaint, courts are challenged to weed out conclusory statements and base their analysis on only the factual pleadings of the Complaint.

Naturally, Iqbal and Twombly have raised serious access to justice issues for plaintiffs who must muster the facts without an opportunity to gather evidence through discovery. The “plausibility” standard is of course entirely subjective; what is plausible to one judge based on his or her life’s journeys may not be plausible to another. And with the challenge to plead facts, plaintiffs are undoubtedly encouraged to put the “kitchen sink” into their complaints and plead complaints that are exponentially larger than those of yesteryear.

With all of the problems caused by Iqbal and Twombly, there is a nugget of gold that can be snatched as a teaching lesson. The notion that litigants are instructed to make their cases based on facts and not conclusions or hyperbole, is a solid concept.

The question of what is a fact and what is a conclusion is of course a lesson that lawyers must understand. In one of my classes at Emory Law School, I asked the students to outline the good facts and bad facts for a case involving assault and robbery. A student raised his hand noting that a good fact for the Defendant is “he has an alibi.” I turned to the student and said, “Are you telling me a fact or are you giving me a conclusion?” The student looked at me. I said, “unpack what you just told me in terms of the evidence, or facts, that support the alibi.” The student then began to tell me about a witness who saw the defendant at a theater performance at the time of the alleged incident; theater tickets found in the defendant’s wallet; and a receipt from a theater vendor which had the time and date stamp on it. Of course these are three very powerful facts – often hard to dispute – which are more compelling than merely stating the conclusion that an alibi exists.

In two weeks, I will again be teaching second year students trial advocacy at Emory Law School. It is hard to explain the difference between facts and conclusions but I give them this example which, in past years, they seem to remember.

Several years ago, a seven year old girl who is the daughter of a trial lawyer, said to her father: “I hate my little brother, no one likes him, he is extremely difficult and we need to trade him in for a new brother.” The father said, “Sweetie, haven’t I told you to make your arguments with facts and not conclusions or hyperbole?” The daughter said, “Yes, I remember Daddy; I will start over. Here is a photo of your BMW and the can of spray paint used to redecorate it. Here is a photo of our dog Spot tied up in your Versace Neck Ties and I have here a photo of your 80 inch Samsung TV set and the baseball that went through the screen; I also have here an essay the little fellow wrote for school which discusses his contemporary art projects. Finally, Daddy, here is a study by a prominent Harvard Psychologist who says that parents do well to act early and trade in ill-behaved children.” The father responded: “I understand. Say no more. The little fellow is history.”

Source: American Constitution Society for Land and Policy Blog, https://www.acslaw.org/acsblog/the-art-of-advocacy

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The Importance of Whistleblowers

Whistleblowers are of vital importance to regulators, helping them put the pieces of the jigsaw together, says Reuben Guttman.

Back in 2013, HSBC whistleblower, Herve Falciani, told the German publication Der Spiegel: “Banks such as HSBC have created a system for making themselves rich at the expense of society, by assisting in tax evasion and money laundering.” Conclosury statements like this are levied all the time by public interest groups, legislators, opinion writers and pundits.  When they are made, they are often a matter of speculation or at most, an argument of inferences from loose facts. Of course, Herve Falciani is different. When he left HSBC in 2008, he reportedly took data from 130,000 customers. He took the facts to allow authorities to make solid claims of tax evasion; claims that can only be effectively levied with inside information.

In a global economy with complex transactions, communications occurring in multiple languages and transactions and communications made with the jargon of the industry, it is extraordinarily complicated for outside regulators to investigate and gather the facts to prove complex fraud cases.  To some degree, it is analogous to a large ship attempting to navigate a harbor without a local captain available to explain where the rocks are or where the water is shallow. Or, perhaps it is like a blind person walking into a room for the first time without having any sense of where the furniture is located.

Of course regulators have the ability to access documents through a subpoena or civil and investigative demands, and they might even have the ability to ask questions under oath.  But which documents do the regulators ask for?  And when the questions are asked, how should the questions be worded so that regulators target the facts with the precision of a laser guided missile?   Imagine an investigator questioning an HSBC official: Question:“Have you aided and abetted foreign citizens in ways that allow them to avoid paying taxes?”  Answer: “No, that is not our mission … we are a bank.”

The problem is that most sophisticated lawbreakers understand the concept of a smoking gun.  Never create a document that summarizes the wrongdoing for regulators.  Never create a document that lays out the facts leading regulators to pinpoint the wrongdoing. And of course, in a large corporation, never create documents, rules, policies or plans that will cause the average employee to question the propriety of a corporation’s efforts. We live in an age where complex wrongdoing is orchestrated through communications and programmes which, if analysed independently, would seem harmless.

Yet, it is the whistleblower – the person inside the box – who can explain how patterns of innocent conduct, when linked together, amount to wrongful schemes involving fraud, money laundering, racketeering and tax evasion.  Whistleblowers like Falciani are so critically important to regulators and without their help, regulators face a daunting task of fully understanding the schemes and pinpointing and gathering the evidence to convince a trier effect that wrongful conduct has occurred.  Hence, “the importance of the whistleblower.”

Source: The Global Legal Post, 18 May 2015  http://www.globallegalpost.com/blogs/commentary/the-importance-of-whistleblowers-68342968/