Litigation & Investigations

The 2020 coronavirus pandemic has not spared the asset recovery practice from its profound impacts. As we previously have discussed, the pandemic accelerated trends toward increased globalization and the ability of evasive debtors to move assets fluidly around the world, as business operators, banks, regulators and virtually all market segments rapidly embraced remote work and electronic commerce.

On September 9, 2020, the Department of Justice (DOJ) announced a $50 million settlement with Wheeling Hospital, Inc. of West Virginia to resolve False Claims Act allegations that Wheeling Hospital violated the Anti-Kickback Statute (AKS) and Stark Law. The settlement resolved False Claims Act allegations that were triggered by a qui tam lawsuit brought by a former vice president of Wheeling Hospital who oversaw hospital operations and physician engagements. According to the relator's complaint, Wheeling Hospital, under its former management, paid several physicians annual compensation in excess of a million dollars based on the volume or value of their referrals.

Since the early days of the pandemic, Mintz’s COVID-19 Compliance & Enforcement Defense Task Force has closely monitored and advised clients on the evolving COVID-19 relief programs, including those created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act provided for over $2 trillion in relief funds, which is the largest emergency assistance package in American history. The numerous CARES Act programs have continued to develop through, among other things, the passage of the Paycheck Protection Program and Health Care Enhancement Act, the Paycheck Protection Program Flexibility Act of 2020, and rapidly changing regulatory guidance and FAQs. As one example, the government recently wrestled with whether to make public the list of about 4.6 million entities that received more than $500 billion from the Paycheck Protection Program (PPP) under the CARES Act. After initially refusing to disclose PPP loan recipients, the Small Business Administration and Treasury Department decided to make public the names of entities that received loans larger than $150,000, as well as the dollar range of each loan.

Read about how price gouging statutes and enforcement, by NY state and city, Mass., and the federal government, may affect businesses during the COVID-19 pandemic.

With courts and government agencies around the world enacting emergency measures in response to the Covid-19 pandemic – ranging from complete shutdowns to delays and limitations – advancing the ball in dispute resolution is more challenging than ever.

The Department of Justice recently filed suit against Anthem, Inc. (Anthem) alleging that the Medicare Advantage Organization (MAO) violated the False Claims Act when it knowingly failed to delete inaccurate diagnosis codes submitted to the Centers for Medicare and Medicaid Services (CMS) for risk adjustment purposes. As predicated in our 2020 outlook post, we continue to see enforcement activity and ongoing litigation against Medicare Advantage plans. Notably, this trend is referenced in SDNY’s complaint, alleging that the government has “sought to enforce” data accuracy in the risk adjustment system by “actively pursuing legal remedies against [] MAOs that have knowingly submitted inaccurate and untruthful diagnosis data to CMS[.]” The complaint provides four examples of settlements obtained from 2012-2019 against MAOs and healthcare providers who, purportedly like Anthem, submitted inaccurate diagnosis codes to CMS or allegedly failed to delete unsupported diagnosis codes.

The U.S. Supreme Court held today that bringing a suit for copyright infringement requires that the infringed work actually be registered with the U.S. Copyright Office, and that a mere application for registration will not suffice.

Since 2013, the Blue Cross Blue Shield Association has faced a series of purported class actions consolidated in the U.S. District Court in Alabama.

Today, the Massachusetts Supreme Judicial Court made an important ruling concerning innovator liability with respect to pharmaceuticals. Though precluding negligence and traditional product liability claims against brand-name manufacturers, Chief Justice Gants held that claims alleging intentional, reckless conduct are permitted.

The Federal Trade Commission (FTC) announced on January 26, 2018, increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act). The FTC revises the thresholds annually based on changes in the gross national product.

A physician organization has failed to sufficiently plead that a physician certification group caused an unreasonable restraint of trade through its actions to promulgate its certification program.

While antitrust enforcement of hospital mergers is well-established, physician acquisitions have only recently and increasingly seen antitrust scrutiny.

On Wednesday, November 8, 2017 the Federal Trade Commission (FTC) hosted a workshop seeking to explore the general question of why the cost of prescription drugs has risen greatly in recent history. The Workshop was framed around industry development in the time since the enactment of the Hatch-Waxman Act in 1984.

Residents of a small Nashville suburb, Thompson’s Station, were given a second opportunity to litigate their antitrust actions against local developer Carbine & Associates, LLC (“Carbine”), Crystal Clear Communications (“Crystal Clear”), and others.

After five years of growth through a series of acquisitions, the Washington State Attorney General’s office filed a lawsuit to thwart and unwind the most recent expansion efforts of Franciscan Health System (“CHI Franciscan”) for violating both federal and state antitrust laws.

On the eve of trial, and after years of litigation (including an appeal to the Sixth Circuit), all claims by Dayton, Ohio hospital The Medical Center at Elizabeth Place against Premier Health Partners have been dismissed with prejudice.

Last week a Delaware federal district court unsealed its earlier opinion blocking the merger of two radioactive waste disposal companies. 

A New Jersey district court recently denied a motion to dismiss in an antitrust class action alleging that a physician association illegally tied board certification to association membership in violation of Section 1 of the Sherman Act. Talone, et. al. v. The American Osteopathic Association, Case No. 1:16-cv-04644 (D. N.J. Jun. 12, 2017).

A federal district court denied summary judgment motions brought by both sides in the government’s antitrust suit against a Michigan hospital alleging an agreement not to compete in violation of Section 1 of the Sherman Act. U.S. v. Hillsdale Community Health Center, 5:15-cv-12311 (E.D. Mich. May 31, 2017).