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FMG Law Blog Line

Archive for August, 2013

Lance Armstrong and the False Claims Act

Posted on: August 23rd, 2013

By: Matt Foree

The 100th running of the Tour de France, the legendary cycling race through the picturesque countryside and mountains of France, concluded last month.  It is difficult to discuss the sport of cycling without mentioning Lance Armstrong, who is handling his own issues in the aftermath of being stripped of seven Tour de France victories.  Among the issues Armstrong is dealing with is defending a False Claims Act lawsuit recently filed by the United States.

The False Claims Act is a powerful federal statute that imposes liability on those who defraud the government.  The statute permits severe penalties, including treble damages.  It also permits whistleblower claims filed on behalf of the U.S. government by private individuals (“relators”), who can receive a share of the proceeds of a government settlement or judgment.  In an interesting twist, the relator in the suit involving Armstrong is Floyd Landis, another controversial cyclist who was stripped of his Tour de France victory in 2006 after testing positive for performance enhancing drugs.

In the suit against Armstrong, the government is seeking damages based on alleged false claims submitted to the United States Postal Service, the sponsor of Armstrong’s former cycling team.  The government alleges that the sponsorship agreements required the team to follow the rules of cycling’s governing bodies, which prohibited use of certain performance enhancing substances and methods.  The government alleges that riders on the USPS team caused violations of the sponsorship agreements by employing banned substances and methods to enhance their performance.  As a result, the government alleges, Armstrong and others submitted or caused to be submitted to the U.S. false or fraudulent invoices for payment.

Armstrong recently filed motions to dismiss the lawsuit, arguing that the court lacks personal jurisdiction over him and that the claims are barred by the statute of limitations.  The court has set a hearing for argument on the motions for November 18, 2013.

Employer Compliance Alert: Gov’t Data Sharing Highlights Need for Proactive Measures

Posted on: August 22nd, 2013

By: Kelly Eisenlohr-Moul

As every employer knows all too well, there are a litany of governmental agencies which may come calling in the event of alleged employment violations, including: the Department of Labor (DOL), Immigration and Customs Enforcement (ICE), the Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), and the National Labor Relations Board (NLRB).

Each of these agencies traditionally operated independently, enforced separate sets of labor and employment related laws, and caused their own unique headaches.

The notable government trend, however, is formal cooperation among these entities through contracts called “Memorandums of Understanding” (MOU).  These contracts allow the relevant agencies to:

 

  • Share information in their electronic databases;
  • Refer matters to each other; and
  • Coordinate investigations

The effects of this information sharing are beginning to be felt by employers.  For instance, employers flagged for alleged E-Verify violations by ICE can now reasonably expect that the DOL or DOJ will come calling to conduct “collateral inquires” (usually another audit).

From a practical perspective, this increased attunement among agencies raises the stakes on compliance with labor and employment laws and regulations.  What may appear to be an innocuous interaction with the DOL could blow up into a contentious battle with the OSC.

Now, more than ever, it is vital that employers proactively implement self-regulatory measures, such as:

  • Well-written employment handbooks;
  • Appropriate evaluation of overtime classifications;
  • Annual I-9 audits; and
  • Employee non-harassment and discrimination training

In the digital age of data sharing, up-front investments in compliance become the best method of assessing risks and reducing your exposure to penalties.

Keep the Change – The Weight of Emotion

Posted on: August 16th, 2013

 By: Seth F. Kirby

Dr. Roger Herrin recently made national headlines when he was ordered to return money that his son’s estate had been awarded in a wrongful death lawsuit. By itself, the order was not really newsworthy. The order was simply a judicial resolution of a dispute between Michael Herrin’s estate and the other parties that were injured in an automobile accident. Dr. Herrin’s unusual way of complying with the court order did, however, generate quite a buzz. As an expression of his dissatisfaction with the court’s ruling, Dr. Herrin paid a portion of the judgment in cash. Specifically, he arranged to have $150,000 in quarters delivered to the law firms that represented the other accident victims. This delivery consisted of 150 bags of quarters each weighing approximately 50 pounds. This 7500 pound payload was delivered on the back of a flatbed truck and obviously created a logistical nightmare for the receiving attorneys.

You often hear personal injury plaintiffs and their attorneys claim that their suit is “not about the money.” The basis for such a statement is that they feel a need to prove a point or accomplish some other purpose with the suit, such as establishing the fault of the defendant or correcting a safety issue. In reality, however, personal injury actions are always “about the money” because the transfer of money between litigants is usually the only method that our legal system has to rectify a wrong. In spite of this reality, Dr. Herrin’s actions remind us that personal injury claims, particularly those that involve serious injuries or deaths, carry an emotional component that should not be ignored.

In 2001, Dr. Herrin’s son Michael Herrin was killed when another driver ran a stop sign and broadsided the Jeep in which Michael was a passenger. The three other occupants traveling in the Jeep were also injured, and the recent decision was simply regarding how available insurance proceeds should be divided among the victims. It was not a return of money to an insurance company or to the at-fault driver, yet Dr. Herrin was angered at the court’s distribution of the limited resources. His reaction to the court’s ruling seems to be an expression of emotion over the way his son’s life was valued by the judicial system. He undoubtedly spent his own money to express his displeasure with the outcome. Such conduct is not logical, but rather based upon emotion and his desire to champion the memory of his son. This observation is not a criticism of Dr. Herrin, but merely recognition that his emotions concerning the death of his son greatly impacted the resulting litigation.

Since personal injury litigation always involves the quantification of damages into sums of money, we have a tendency to forget the emotional aspects of a claim.  Overcoming the emotional components of a personal injury claim is often the key to its resolution.  Money is limited, but compassion and understanding do not have to be.

Google Glass: An O.R. Dash Cam?

Posted on: August 16th, 2013

By: William D. Ezzell

With the application of digital memory to point-of-view cameras, certain fields have undergone significant transformation.  For example, dash cams in police cruisers provide authoritative documentation of what actually happened. The advent of Google Glass could very well bring a similar revolution to the surgical field. For those unfamiliar, Glass is a wearable computer that contains an optical head-mounted display on glasses. Recently, Google Glass was used by a physician while performing surgery to record and broadcast the surgery around the world. This groundbreaking event could lead to major advances in the medical/legal field which will presumably benefit patients, physicians, and malpractice carriers.

Physicians worldwide would be able to monitor and provide instant advice during a procedure, helping the patient, surgeon, and vastly improving the peer-review process. Expert testimony would be more reliable given visual evidence, and determining whether a surgeon did or did not do something could conceivably be a thing of the past.

Malpractice carriers would similarly welcome the use of Glass, if not require it altogether. Having a clear cut video of exactly what happened would alleviate some of the gambles inherent in preparing case strategies. Insurers would be better informed, allowing them to settle cases where malpractice likely occurred while vigorously defending lawsuits contradicted by Glass’ footage.

Let us know your thoughts on whether Glass is a good or bad thing for the medical/legal industry.

“NOT SO FAST”: THE GOVERNMENT PURSUES PRECLEARANCE BY OTHER MEANS IN THE WAKE OF SHELBY COUNTY V. HOLDER

Posted on: August 15th, 2013

By: Peter Munk

In Shelby County v. Holder, the Supreme Court struck down as unconstitutional the preclearance formula found in Section 4 of the Voting Rights Act.  Since 1965, Section 4 had dictated which states or jurisdictions were “covered” under Section 5 of the VRA. Covered jurisdictions were required to seek federal approval for all changes to state voting laws.  Of late, preclearance requirements have been a thorn in the side of states like Texas that have sought to introduce sweeping voter ID laws and redistricting plans in the face of staunch opposition from the Department of Justice.

Needless to say, Texas officials declared victory in the wake of the Shelby County decision, arguing that the decision freed them from the strictures imposed by preclearance.  They may have spoken too soon.

Section 3 of the Voting Rights Act provides that a court finding intentional voter discrimination may not only remedy the violation, but also impose preclearance requirements similar to those found in Section 5.  This process, known as “bail-in”, saw limited use when Section 5 was the primary vehicle for dealing with allegedly misbehaving states.

But with Section 5 hampered, Section 3 finally has its chance to get in the game.  Recently, the Justice Department has asked the Western District of Texas to “impose Section 3(c) coverage on the State of Texas as to all voting changes for a ten-year period.”    The State responded that such a request was an “extreme sovereignty-infringing remedy” that may only be applied “in response to rampant, widespread, recalcitrant discrimination.” The contours of Section 3 are still unknown, so the outcome of the litigation is anyone’s guess.  But whatever the result, it is clear that Section 3 will be an important tool for the government as it seeks to reign in states like North Carolina and Texas that press forward with laws that it deems discriminatory.