This past week, federal and state correctional facilities across the country have confirmed outbreaks of COVID-19 infections among inmates and staff. New York City’s primary jail, Riker’s Island, currently has the most confirmed cases, with 52 inmates and 30 employees testing positive. As this blog and other outlets have reported, crowded conditions, limited access to healthcare, and a high-risk population mean those incarcerated are particularly vulnerable to the disease.
Since the outbreak of the COVID-19 virus, law enforcement officials throughout the country have publicly committed to aggressively combatting pandemic-related fraud. Those pronouncements have translated into action focused, at least at this early stage, upon frauds which might impact consumers’ health and safety. The first federal civil enforcement action took place on Saturday, March 21, 2020. On that date, the U.S. Department of Justice, in coordination with the U.S. Attorney for the Western District of Texas, filed the first civil enforcement action against a COVID-19 related fraud. Prosecutors sought an injunction shutting down a website, which purportedly offered to provide “free” coronavirus “vaccine kits” for a $4.95 shipping and handling fee. This request for injunctive relief, which resulted in a temporary restraining order pursuant to 18 U.S.C. § 1345, is likely an omen of more to come. Continue reading U.S. Department of Justice Files Civil Complaint for COVID-19-Related Fraud
Federal and state prison officials have started releasing their action plans in response to the COVID-19 outbreak. The BOP and some states have suspended legal and/or social visits and inter-facility transfers for 30 days or more, among other changes in policy that we discussed last week. The links below will direct you to the complete guidance issued by the BOP and various state prison authorities:
As businesses and governments scramble to contain the coronavirus pandemic (“COVID-19”), one segment of society is uniquely vulnerable: the prison population. Poor hygiene, limited medical resources, overcrowding, and prohibitions on over-the-counter medical supplies such as hand sanitizer make corrections facilities and immigration processing centers very susceptible to the disease. It presents a serious threat to the prison system and could quickly escalate into a disaster if immediate steps are not taken.
The White House recently unveiled its federal budget proposal and, as expected, funding for regulatory agencies is on the chopping block once again. Under the proposal, the Consumer Financial Protection Bureau (“CFPB”) would see its budget trimmed by $110 million in 2021 while the Commodity Futures Trading Commission (“CFTC”) faces a potential budget cut of more than 20 percent.
Yet, perhaps the most surprising feature of the proposed budget is what it leaves out. The administration has proposed eliminating the Public Company Accounting Oversight Board (“PCAOB”) and reassigning its responsibilities to the Securities and Exchange Commission (“SEC”) beginning in 2022. The White House estimates the move would save the government $57 million in its first year and up to $580 million by 2030 by reducing “regulatory ambiguity and duplicative statutory authorities.” But doing away with the PCAOB will weaken the policing of auditing firms and ignores the improvements made in accounting standards and auditing quality. Continue reading Budget Proposal to Eliminate the PCAOB Could Leave Financial Markets More Susceptible to Accounting Fraud and Misconduct
Sheldon Silver, former speaker of the New York State Assembly, was convicted of a number of political corruption crimes in 2015, namely accepting bribes in exchange for favorable “official acts” that benefited some bribe payors. He appealed his conviction to the Second Circuit on two grounds: first, that the trial court erred by failing to require that the prosecution establish that he and the bribe payor had a “meeting of the minds” on the specific official act to be performed in exchange for the bribes; and second, that the trial court erred by allowing the prosecution to proceed on a theory that allowed conviction based on a “nonspecific promise to undertake official action on any future matter beneficial to the payor.” (Emphasis added.)
On January 21, 2020, the United States Court of Appeals for the Second Circuit partially reversed Silver’s conviction and remanded the case for resentencing. The court’s logic and findings are significant and merit close attention.
In an October 2016 guidance document, the United States Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission alerted human resources professionals to potential violations of the antitrust laws in hiring and compensation decisions. The guidance included the announcement that, “Going forward, the DOJ intends to proceed criminally against naked wage-fixing or no-poaching agreements.” A naked agreement is one that is not ancillary to a broader, legitimate collaboration between businesses.
The DOJ’s decision to proceed criminally against such agreements is significant. Although the Sherman Act allows the DOJ to proceed either criminally or civilly against antitrust violators, before the guidance was issued the DOJ had treated agreements between competitors not to solicit each other’s employees as merely civil violations. Following the guidance, companies and individuals suddenly had to worry about criminal fines and potential jail sentences for entering into such agreements. Nevertheless, three years have now passed without a single such indictment being filed.
In a concise, six-page discovery order, a federal judge in Minneapolis may have just started the proverbial shifting of tectonic plates undergirding routine defense procedures in False Claims Act (FCA) litigation by requiring a defendant in an FCA lawsuit to produce the information provided to the Department of Justice (DOJ) during the DOJ’s process of determining whether to pursue the matter.
The FCA creates liability for persons or entities found to have knowingly submitted false claims to the government or having caused others to do so. Like some other federal laws, the FCA creates a private right of action; under the act, a private party—a whistleblower or “relator”—may bring a qui tam action on behalf of the government. When initially filed, the court seals the complaint pending the government’s investigation of the case. If the government chooses, it may intervene and pursue the matter. If not, the relator may pursue the case on its own. (In either case, the relator is entitled to a percentage of the government’s recovery.)
Genetic testing and telemedicine targeting senior citizens and individuals with disabilities have been the subject of growing government scrutiny. Most recently, on September 27, 2019, the United States Department of Justice announced charges against nearly three-dozen individuals—across numerous federal judicial districts—allegedly responsible for more than $2.1 billion in Medicare billing losses, all of which stem from misconduct in the provision of genetic testing and telemedicine services.
According to the DOJ’s press release, the federal investigation uncovered a scheme in which cancer genetic testing laboratories paid kickbacks and bribes to healthcare providers in exchange for the referral of medically unnecessary services for Medicare beneficiaries. The government alleges that, in many instances, the tests were ordered by physicians who had no treating relationship with the patients and the results of the unnecessary tests were often withheld from the beneficiaries or their actual treating physicians. The DOJ also alleges that the defendants targeted seniors and individuals with disabilities. According to the government, the patients often received scripts for genetic testing from physicians with whom they had never interacted or had had only brief telephone conversations.
Sooner or later, nearly every white collar defense attorney will represent a witness subpoenaed to testify before a federal grand jury. It is well settled in most circuits that federal grand jury witnesses do not have a right to have defense counsel present during the grand jury proceedings – but how frequently may witnesses request a break in the grand jury proceedings to leave the room to consult with their lawyers about the questions being posed?
Quite frequently, it turns out. Many federal courts allow non-immunized grand jury witnesses to consult with their lawyers after each question posed. See U.S. v. Soto, 574 F.Supp. 986, 990 (D. Conn. 1983). Courts recognize that witnesses reasonably wish to consult with counsel to avoid, for example, providing testimony which may tend to incriminate them. While some courts may limit the frequency of consultation to every two or three questions, particularly if the breaks become too lengthy or disruptive, courts will typically honor requests for regular consultation unless the request appears “frivolous” or “with intent to frustrate the proceedings.” See In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972). Continue reading Sometimes, You CAN Always Get What You Want: Counseling Clients On Taking Breaks Before a Federal Grand Jury