State-backed whistleblower suit claims neglect in Delaware prison care

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News

A whistleblower lawsuit that has been hidden from public view for nearly three years claims a private contractor paid hundreds of millions of dollars to provide healthcare to prisoners in Delaware covered up deficiencies in care that neglected, maimed, and caused undue suffering to people imprisoned by the state.

Now, Delaware’s Attorney General is joining that whistleblower lawsuit against the state’s former prison healthcare provider, according to recently unsealed court filings.

Centurion was paid some $200 million by the state over three years to provide primary healthcare and mental health services to more than 4,000 prisoners in Delaware ending in 2023. At the time, Centurion was a subsidiary of Centene Corp, a Fortune 25 company and the nation’s largest insurer for the country’s Medicaid program.

Both companies are named as defendants and did not reply to multiple requests for comment through their media and investor teams as well as legal counsel over multiple days.

The lawsuit accuses the business of falsifying records, propping up mental health programs they knew were accomplishing nothing, funneling prisoners toward addiction to and covering-up staffing shortages in a way that denied prisoners adequate healthcare.

“It needs to change,” said Christopher Craig, a prisoner at Howard R. Young Correctional Institution who has spent 31 years in Delaware lockup. “It has gotten worse and it needs to be fixed.”

Horror stories told by prisoners, lawsuits filed on their behalf and at least one government report have for years painted correctional healthcare in Delaware as broken and the cause of suffering.

But this lawsuit is unique.

It was filed in 2023 by two former mental healthcare providers employed by Centurion at Sussex Correctional Institution under a special form of litigation designed to incentivize people to point out fraud perpetuated against the government.

Since its filing, the lawsuit has remained hidden from public view under a court-ordered seal while the office of Delaware Attorney General Kathy Jennings investigated the allegations and eventually decided the state would intervene in the litigation as the defrauded party.

Jennings office declined comment citing the pending litigation. The Delaware Department of Correction, which oversees the delivery of healthcare by private companies, is not named as a defendant and also declined comment.

The state joining the lawsuit represents a remarkable endorsement of the allegations and what prisoners and their families have said for years: the common business model for prison healthcare in Delaware and the United States generally anticipates and prolongs suffering for profitability.

“Centurion’s business model is premised on profit reaped through the denial of basic healthcare and behavioral healthcare required by government contracts,” the lawsuit states.

Centurion enters after scandalous divorce:

State officials hailed Centurion entrance into Delaware’s prisons as a reform as the state divorced its prior, scandal-ridden healthcare provider Connections Community Support Programs Inc.

After years of lawsuits, complaints by prisoners and outside medical providers, Delaware terminated its contract with Connections early. Eventually, the once politically connected non-profit was also sued for defrauding government through drug treatment programs administered outside of Delaware’s prisons. That lawsuit was settled.

At the time, then Department of Correction Commissioner Claire DeMatteis said Centurion would be more professional and better staffed than Connections.

Centurion was selected over other bidders under three-year, extendable contracts that would pay the company $47 million annually to provide basic healthcare services in the prison and $21 million annually to provide mental healthcare as well as drug and alcohol abuse rehab programs.

Centurion operated under the common model for healthcare in American prisons. They bid a certain amount to provide the service; they are paid by taxpayers in monthly instalments and whatever money is left after healthcare is delivered is the company’s profit.

And despite prisoners being financially destitute, Medicaid does not pay for their healthcare unless they are hospitalized for more than 24 hours. Critics say this setup incentivizes shortchanging care, especially expensive specialty care and care that requires an outside doctor.

The company’s basic task is to employ healthcare professionals to provide primary care inside prisons: to make diagnosis and treatment plans, manager prisoners’ medication, provide what care is possible inside the prison and refer people to outside specialists when needed.

The mental health contract is similar and mandated the company administer special programs for substance use disorders which are often linked to a person’s eventual release from prison.

The contract included provisions outlining minimum staffing levels, basic training and qualifications for staff, requirements for the administration of rehabilitation programs that prisoners and provisions for officials to withhold payment if the company didn’t adequately perform these tasks. 

The lawsuit states that these contractual agreements were “lies” by the company.  

“Centurion’s assurances about the treatment and rehabilitation it would provide were false, and it conspired to conceal these shortfalls from the Department of Correction,” the lawsuit states. 

The whistleblowers’ allegations:

Deneen Rayne and Jamie Basara, the two whistleblowers who instigated the lawsuit, both worked for Centurion as substance abuse counselors at Sussex Correctional Institution near Georgetown.

They were part of what was known as the Road to Recovery program, a rehabilitation program that judges order some prisoners to complete during their sentence.

The lawsuit cites their observations to label the program as fraud:

The program was designed to have a minimum staffing of counselors and managers but was never properly staffed, the lawsuit states. Required training wasn’t completed. To create an appearance of compliance, employees would be shifted around when corrections supervisors would visit.

Assessments were completed without meeting with prisoners. Supervisors ordered that one-on-one counseling be skipped in favor of group work to maintain appearances. Some group sessions had no counselor and were led by the participants. 

What was supposed to be regimented counseling work became prisoners completing worksheets on their own. And generally, the lawsuit states that medical records, staffing records, assessment documents, participation records were all fabricated to create a “charade” of compliance. 

Brian Whiteside is a prisoner at Howard R. Young Correctional Center. He has struggled with addiction, overdosed in prison and participated in the Road to Recovery Program. 

“It is not a program,” he said in an interview. “It is a money grab.”

He said the contractor employees did not follow the rules for how the program is supposed to work, mental health counseling that is supposed to come with the medication is sparse and the result is many participants return to prison after or die of an overdose on the outside. 

“It was a joke. There is no accountability. The process doesn’t work,” he said.

The lawsuit also includes Rayne and Basara’s observations about the delivery of general healthcare.

It states sick calls were not attended to in a timely and that they had to pester correctional staff to pressure their higher-ups to attend to ailing prisoners. One prisoner with colon cancer couldn’t get an outside colonoscopy, would regularly soil himself, flies hovered around him and his sick call went unanswered for two weeks, the lawsuit states.

The lawsuit tells the story of one prisoner whose cancer caused him to deteriorate, but he could not get proper help until he was hospitalized and believed by the plaintiffs to have died. The lawsuit claims officials let him deteriorate to shift the cost for palliative care onto Medicaid through an extended hospitalization.

“Centurion’s strategy across the state of Delaware was to deny inmates the care they needed in an effort to shift financial responsibility onto Medicaid when inmates became seriously ill and required hospitalization,” the lawsuit states. 

The lawsuit also accuses Centurion of causing addiction by putting prisoners who were not suffering from a substance abuse problem onto addictive drugs designed to treat opioid conditions. It claims a prisoner with a heart condition and another suffering from schizophrenia had their prescribed drugs withheld in favor of opioid abuse medications. 

“Inmates were told repeatedly the drugs they needed were too expensive,” the lawsuit states. 

Big money stakes:

The lawsuit states that Rayne and Basara were both “constructively terminated” in September 2022 after they complained about failures in care. They filed their lawsuit about a year later under what is known as the Delaware False Claims and Reporting Act law.

The law is modeled after a similar federal law that incentivizes whistleblowers to point out individuals or companies that make false claims aimed at defrauding the government. It awards the whistleblowers a percentage of spoils if the lawsuit is successful. In this case, the whistleblowers could receive up to 25 percent of the proceeds.

Litigation under the False Claims Act classifies whistleblowers like Rayne and Basara as “relators” and the state as the plaintiff.

After the lawsuit was filed under seal in September 2023, civil attorneys under Jennings, the state’s top legal officer, began an investigation into the allegations to answer whether the state would join the lawsuit.

Washington D.C.-based attorney Reuben Guttman represents Rayne and Basara and is considered an expert in this type of litigation. He said the government choosing to intervene generally tells the court that the allegations are “material” and “important.”

“You have a lot of private vendors that have come into the (prison) healthcare area and offered the quick fix. Quite frankly, there is no quick fix,” Guttman said. “It is an unfortunate situation, and it is important that the state has stepped in and is taking on these defendants.”

The lawsuit seeks three times what the court may rule as the amount of damages the government sustained because of the fraud as well as the “disgorgement” of all money resulting from the company’s “wrongful conduct.”

State records indicate Centurion was paid $206 million over the course of the contract.

Centene sold off its prison healthcare business in 2023 at what court records indicate was a fire sale price. And there is an ongoing, separate court fight in Delaware’s Chancery Court over who has to pay still-growing costs associated with claims of malpractice and negligent care from when Centene owned the business.

Centene, a publicly traded company, has argued that the terms of the sale means the business’ buyer, a private conglomerate of construction and government contracting businesses owned by a Texas family, should have to pick up the bill.

The Sullivan Brothers Family of Companies accused Centene of obscuring the scale of the negligence claims against the business before the sale and twisting the purchase contract’s language in an unfair attempt to pin costs associated with those long-running medical negligence claims on them.

Why care?

Prisoners are stripped of their freedom for a period of incarceration by a judge, but are not sentenced to medically suffer or potentially die at an earlier age due to neglect. The U.S. Supreme Court has also interpreted amendments to the U.S. Constitution to imbue those imprisoned with a right to basic healthcare and humane conditions. 

And the cost to provide care for people in prison is one of the largest borne by society in today’s carceral system − totaling well more than $50 million a year from state coffers in Delaware.

And while this lawsuit is unique because of the state’s involvement, the allegations are not new for Centurion or Delaware prison healthcare providers before or after.

The allegations follow a similar narrative told by prisoners in interviews with DelawareOnline/The News Journal as well as large-scale litigation against Centurion, VitalCore Health Strategies, the current healthcare provider, and Connections before those two. 

In 2023, the local chapter of the ACLU sued Centurion and VitalCore accusing the contractors of understaffing and delaying basic and outside care and consultation to the point of permanent health consequences. It seeks to represent every prisoner that has been incarcerated while those two have worked for the state.

That lawsuit is ongoing. It comes after a host of other lawsuits and settlements regarding Delaware’s prison healthcare that continue to trickle in against Centurion and providers all the way back to Connections.

In February, the insurer for the now bankrupt Connections settled a prison healthcare lawsuit filed all the way back in 2020 by the family of a 35-year-old man who died of what his lawsuit described as violently obvious opiate withdrawals after a day and a half of being jailed on driving charges.

Whiteside, a prisoner at Howard R. Young, said the system remains disjointed, people don’t receive the care they need and he fears that it is designed to discourage people from seeking care. He said the system leaves people feeling “defeated, deflated and overwhelmed.”

“If you want healthcare you have to fight,” he said. “You have to advocate for yourself. You have to put multiple sick calls in and most people get tired of the process,”

He said people on the outside should care because prisoners are not sentenced to suffer medically and that prison is supposed to include rehabilitation.

“Prison is not supposed to be easy, not supposed to be comfortable,” he said. “But the punishment is being away from our families.” 

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Delaware prisoners may also contact Xerxes Wilson on the GettingOut app.

Source: https://www.aol.com/articles/state-backed-whistleblower-suit-claims-082033236.html

How BigLaw Executive Orders May Affect Smaller Firms

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News, Whistleblower Resources

I represent the little guy — civil rights plaintiffs, whistleblowers, consumers and inmates, to name a few.

My opposition is often BigLaw firms, the ones with hundreds, if not thousands, of lawyers.

On a normal day, I have my disputes with these firms over pleading standards, compulsory arbitration and deference to administrative agencies. We battle it out within the legal system. It’s an imperfect system, no doubt, affected by politics and bias.

I didn’t think I’d ever advocate on behalf of these firms. But today, I feel compelled to do so, because of an issue that affects us both — the executive orders targeting some of the nation’s largest law firms.

This isn’t just about BigLaw, and it’s not just about the BigLaw firms named in executive
orders. It’s also about the small firms, the solo practitioners and the public interest lawyers who see what is happening to these big firms and are

I represent the little guy — civil rights plaintiffs, whistleblowers, consumers and inmates, to name a few.

My opposition is often BigLaw firms, the ones with hundreds, if not thousands, of lawyers.

On a normal day, I have my disputes with these firms over pleading standards, compulsory arbitration and deference to administrative agencies. We battle it out within the legal system. It’s an imperfect system, no doubt, affected by politics and bias.

I didn’t think I’d ever advocate on behalf of these firms. But today, I feel compelled to do so, because of an issue that affects us both — the executive orders targeting some of the nation’s largest law firms.

This isn’t just about BigLaw, and it’s not just about the BigLaw firms named in executive orders. It’s also about the small firms, the solo practitioners and the public interest lawyers who see what is happening to these big firms and are wondering what they will do if and when they, too, are targeted.

Make no mistake: If BigLaw firms can be targeted, so too can midsize law firms, boutiques, solo practitioners, prosecutors and public defenders. Though I litigate against BigLaw, on this day and on this matter, we are kindred spirits.

The legal system only works if lawyers can represent clients without retribution or fear of retribution. Once in court, advocacy is regulated by the tribunal itself.

Ethical, procedural and evidentiary rules govern the lawyer and the process. It is a laboratory environment where, on a good day, a case will sink or swim on the merits, and the lawyers will move on to the next matter untainted by their advocacy on behalf of an entity or person whose position did not prevail or whose conduct was deemed unsavory.

In addition to the orders targeting specific law firms, the president signed a memorandum on March 22 making it clear that none of this is limited to just a few large firms. That memo directs the attorney general to be more aggressive in the use of sanctions motions and ethical charges against those who litigate against the government. The memo states:

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend … additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.[1]

The March 22 memo is noteworthy not only for what it says but for what it does not say. It provides for a referral for “additional steps,” including the loss of contracts or the loss of security clearance, not after a court determines that sanctions are warranted, but after the attorney general makes such a determination. That referral can occur without a motion for sanctions being filed, or before the court has ruled on a motion for sanctions. Under this memo, the referral and additional steps can be taken even if the court denies the motion for sanctions.

It is, in sum, a memo that provides a litigant — indeed the defense counsel for the government and the government itself — the sole right to sanction counsel. In this way, the memo effectively removes the judge from the sanctions calculus.

The sanction of having security clearance withdrawn is of course not an abstract proposition. A lawyer needs security clearance to represent, for instance, employees of the CIA, the FBI and the intelligence community who have lost their jobs through Department of Government Efficiency cutbacks. And a number of the firms representing plaintiffs in these cases are boutique or midsize litigation firms, or public interest nonprofits.

By eliminating the security clearance of lawyers or maintaining a threat to do so, a defendant — in this case the government — may essentially curtail opposing counsel’s ability to represent such clients, or influence their advocacy.

It was in Marbury v. Madison that Chief Justice John Marshall in 1803 famously said that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

Fundamental to that protection is the ability to secure counsel. There is no question that the March 22 memo will cause all lawyers — but especially public interest lawyers and solo practitioners — to think twice about whether to take on cases they would ordinarily assume.

Yes, the big firms have their pro bono practices, but it is the smaller firms and the boutique practices that tend do the everyday work of challenging government action. It is the small firms and public interest organizations whose institutional missions focus primarily on things like representing immigrants facing deportation or inmates of for-profit prisons who seek proper medical care, or bringing suits under the Freedom of Information Act to make government more transparent.

But these firms simply do not have the resources or cash flow of the big firms. Unlike Perkins Coie LLP, WilmerHale and Jenner & Block LLP, which have all challenged these executive orders, small firms may be unable to tap the expertise of the best constitutional lawyers in the land to defend themselves against ruin.

Imagine a scenario where a solo practitioner represents a student who is in this country under a student visa, but who has been detained and subject to deportation because of the content of an article they authored in the student newspaper. How might that practitioner react when the government lawyer takes him aside and says that a potential lawsuit is sanctionable? A gutsy lawyer might say, “I’ll see you in court.” But of course, under the March 22 memo, the government may secure sanctions absent a court determination.

The sanctions might include loss of security clearance and/or loss of government contracts. For the lawyer who represents members of the intelligence community or the public interest group that benefits from government grants, the threat is significant. But these are only examples as the memo’s use of the phrase “additional steps that maybe taken, including” makes clear that potential recriminations are boundless.

A big firm may have lobbyists or insiders who can negotiate a resolution with the president. But the average solo practitioner does not have such access or leverage.

In the end, solo practitioners, small law firms and public interest attorneys may find themselves more dramatically affected by the collective impact of these executive orders and memoranda than even the BigLaw firms that have been directly targeted.

Absent the resources and revenue of their BigLaw counterparts, these firms may just temper their advocacy or curtail client relationships. When this happens, there will be no headlines or banner story on the nightly news. Public interest advocacy will have been curtailed — perhaps forever — in ways that will not be easy to quantify.

______________________________________
Reuben A. Guttman is a senior founding partner at Guttman Buschner PLLC. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

1. https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/.

Evidence Refresher: New & Overlooked Rules Every Litigator Should Know

CLE, Reuben Guttman Articles, Whistleblower Resources

Program Summary

Think you know the rules of evidence? Think again! This engaging CLE will cover recent changes, commonly misunderstood provisions, and overlooked evidentiary rules that could make or break your case. Whether you’re in the courtroom every day or just brushing up, this session will help you confidently navigate key evidentiary challenges. This program will be packed with what you need to gain stronger command of these critical evidence rules. Join us for this must-attend CLE and make sure your evidence game is courtroom-ready!

Key topics to be discussed:

Rule 106 – The Rule of completeness: When can you force the opposing party to introduce the rest of the story?

Rule 107 – Illustrative aids (a new rule!): How and when can you use visuals to support your case?

Rule 201 – Judicial notice: What facts can the court accept without traditional methods of proof, and how do you use this to your advantage?

Rule 615 – Sequestration: Who can you exclude from the courtroom and why might you want to?

Rule 807 – Residual exception to the hearsay rule: When can hearsay still come in, even when it doesn’t fit a Rule 803 or Rule 804 exception?

Rule 1002 – The best evidence rule: What’s really required when proving the contents of a document?

Rule 401- Relevance: What is really relevant and when is the rule being used to be backdoor in evidence for other purposes?

Rule 403- Probative value and unfair prejudice: What are some examples of unfair prejudice, confusion, or waste of time that might succeed in getting evidence excluded?

Rules 801 and 803- Hearsay: What are the common misconceptions about hearsay and exceptions everyone should consider using?

Rules 901 and 902- Authentication: How do issues relating to Artificial Intelligence play into the authentication of evidence?

Rule 1006- Summaries: When can you avoid dealing with the hassle of documents?

Agenda

I. Rule 106 – The Rule of completeness: When can you force the opposing party to introduce the rest of the story? | 2:00pm – 2:10pm

II. Rule 107 – Illustrative aids (a new rule!): How and when can you use visuals to support your case? | 2:10pm – 2:20pm

III. Rule 201 – Judicial notice: What facts can the court accept without traditional methods of proof, and how do you use this to your advantage? | 2:20pm – 2:30pm

IV. Rule 615 – Sequestration: Who can you exclude from the courtroom and why might you want to? | 2:30pm – 2:40pm

V. Rule 807 – Residual exception to the hearsay rule: When can hearsay still come in, even when it doesn’t fit a Rule 803 or Rule 804 exception? | 2:40pm – 2:50pm

VI. Rule 1002 – The best evidence rule: What’s really required when proving the contents of a document? | 2:50pm – 3:00pm

Break | 3:00pm – 3:10pm

VII. Rule 401- Relevance: What is really relevant and when is the rule being used to be backdoor in evidence for other purposes? | 3:10pm – 3:22pm

VIII. Rule 403- Probative value and unfair prejudice: What are some examples of unfair prejudice, confusion, or waste of time that might succeed in getting evidence excluded? | 3:22pm – 3:34pm

IX. Rules 801 and 803- Hearsay: What are the common misconceptions about hearsay and exceptions everyone should consider using? | 3:34pm – 3:46pm

X. Rules 901 and 902- Authentication: How do issues relating to Artificial Intelligence play into the authentication of evidence? | 3:46pm – 3:58pm

XI. Rule 1006- Summaries: When can you avoid dealing with the hassle of documents? | 3:58pm – 4:10pm

Speakers

Veronica J. Finkelstein | Wilmington University School of Law

Veronica J. Finkelstein combines the best of practice and teaching, devoting herself to developing the next generation of top advocates. She is both an experienced litigator and a skilled educator with diverse scholarly interests. Finkelstein spent a majority of her career as an Assistant U.S. Attorney with the U.S. Department of Justice in Philadelphia before transitioning to a fulltime teaching role at the Wilmington University School of Law.

At the U.S. Attorney’s Office, she served as the civil division training officer and paralegal supervisor before being selected as senior litigation counsel. Finkelstein handled various civil affirmative and defensive matters and criminal child exploitation cases. She tried numerous civil defensive cases to winning verdicts, including tort, employment law, and medical malpractice cases. She also successfully litigated cases on appeal.

In addition to this defensive work, Finkelstein investigated and prosecuted affirmative fraud claims, including qui tam actions. In 2014 she was awarded the Executive Office of United States Attorneys Director’s Award for Superior Performance as a Civil Assistant U.S. Attorney.

Before joining the Department of Justice, Finkelstein clerked for the Honorable Jane Cutler Greenspan on the Pennsylvania Supreme Court. She also previously worked as a construction litigator at Duane Morris, LLP and Cohen Seglias Pallas Greenhall & Furman, PC.

A gifted teacher who regularly works with both lawyers and law students, Finkelstein has taught at the U.S. Department of Justice’s National Advocacy Center on ethics, appellate advocacy, legal writing, and trial practice. She frequently serves as a program director for the National Institute for Trial Advocacy, where she teaches depositions, motion practice, trial advocacy, and legal writing programs. In 2024 she was awarded NITA’s Jo Ann Harris Public Service Award.

Prior to entering academia full time, Finkelstein served as adjunct faculty of law at Drexel Law, Emory Law, and Rutgers Law. She was awarded the Carl “Tobey” Oxholm III Outstanding Contribution to the Thomas R. Kline School of Law Community Award in 2021 and was named Rutgers Law School Adjunct Professor of the Year every year she taught at Rutgers Law.

Finkelstein’s scholarship is as diverse as her litigation and teaching experience. Her scholarship has addressed various topics, from evidence, to civil procedure, to constitutional law. Her essay “The Quest to Normalize Questments” was selected as the 2024 winner of Temple Law Review’s Edward D. Ohlbaum Paper in Advocacy.

She is also the co-author of the Professional Responsibility textbook “Ethical Lawyering: A Guide for the Well-Intentioned,” which contextualizes the rules of professional conduct in realistic litigation settings. The textbook is now in its second edition.

Finkelstein graduated, with honors, from the Emory University School of Law. She was a highly competitive member of Emory Law’s moot court society and was selected for the Order of the Barristers. She received her undergraduate degrees, with honors, from the Pennsylvania State University.

Reuben Guttman | Guttman Buschner, PLLC

Reuben Guttman is a founding member of Guttman Buschner, PLLC where his practice involves civil rights, whistleblowers, class actions and complex litigation. The International Business Times has referred to him as “one of the world’s most prominent whistleblower attorneys.” Citing “wins recouping billions of dollars for the federal and state governments,” Boston Globe’s STAT News referred to him as the “The Lawyer Pharma Loves to Hate.”

Guttman has represented workers, unions, and pension funds in complex litigation. For over a decade, he has served as the chief outside counsel to the Oil, Chemical & Atomic Workers International Union, AFL-CIO/CLC, in a series of labor and environmental cases that enhanced safety and environmental conditions at Manhattan Project nuclear weapons sites while driving dread disease compensation legislation for nuclear weapons workers across the nation.

In 2020, he served as lead counsel in a federal class action lawsuit against the South Carolina Department of Corrections and secured a consent order mandating Hepatitis C testing and treatment for 17,000 inmates.

Guttman is currently a faculty member of the American University School of Public Affairs where he teaches Equal Protection/Civil Rights, and he has been an Adjunct Professor at Emory Law School and a Senior Fellow at Emory Law’s Center for Advocacy and Dispute Resolution. He is a Founder and Senior Advisor to the Emory Corporate Governance and Accountability Review (ECGAR). He is the 2015 recipient of the Emory Law Alumni Service Award.

He has taught trial advocacy and complex case investigations in the United States, China, and Mexico, and he has co-authored three case files – two published by Emory Law and one published by the National Institute of Trial Advocacy where he is a faculty member.

He is co-author (with J.C. Lore III of Rutgers Law) of the textbook, Pretrial Advocacy (Wolters Kluwer Spring, 2021). He is a chapter co author (with Traci Buschner) and wrote the introduction for Remote Advocacy: A Guide to Survive and Thrive (Wolters Kluwer and National Institute of Trial Advocacy, 2020).

Guttman has written or co-authored more than 100 articles or opinion pieces and multiple book chapters and law review pieces. He is a monthly columnist for Law360 where he writes on litigation and politics. His article, Pharmaceutical Regulation in the United States; a Confluence of Influences, wastranslated and published in Mandarin in the Peking University Public Interest Law Journal, Vol 1, Page 187 (2010).

Guttman is a Fellow of the American Bar Foundation; he is past member of the Board of Directors of the American Constitution Society (ACS) where he is currently a member of the ACS Board of Advisors. Guttman received his JD from Emory University and his BA in American History from the University of Rochester. He is the founder of www.whistleblowerlaws.com. He began his legal career as a Washington, DC counsel for the Service Employees International Union, AFL-CIO, where he served for five years.

To register, to learn about CLE and more visit https://mylawcle.com/products/evidence-refresher-new-overlooked-rules-every-litigator-should-know/

Courts Affirm Constitutionality of FCA Qui Tam Provision

Legal Developments, Whistleblower News

On September 30, 2024, Judge Kathryn Mizelle in the Middle District of Florida granted a defense motion for judgment on the pleadings and dismissed an FCA case after concluding that the FCA’s qui tam provision is unconstitutional.   U.S. ex rel. Zafirov v. Fla. Medical Assoc. LLC, No. 19-cv-1236, Dkt. No. 346 (M.D. Fla. Sept. 30, 2024).

Judge Mizelle first concluded that FCA relators are “officer[s] of the United States,” because they 1) “exercise significant authority pursuant to the laws of the United States,” in the form of possessing civil enforcement authority on behalf of the United States, and 2) “occupy a ‘continuing’ position established by law,” because “the position of relator does not depend on the identity of the person initiating the action, as any ‘person’ can be the relator if she satisfies the statutory prerequisites.”  Based on the foregoing, she determined that qui tam relators must be appointment in a manner consistent with the Appointments Clause, which is not satisfied by a relator’s “self-appointment.” The opinion was predicated almost entirely on dicta by Justice Thomas in a dissent in the case of United States ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). The dicta questioned but did not answer whether the qui tam device violates Article II’s appointments clause because this determination was unnecessary to rule on the matter before the Court. Justices Kavanaugh and Barrett concurred in the query.

At odds with longstanding appellate precedent, the Zafirov opinion ignores the oversight mechanisms and safeguards built into the FCA to ensure the Government can maintain control of declined cases as the real party in interest. It has gotten little traction in the ensuing weeks. In early November, a federal court in the Eastern District of Tennessee criticized it as an “outlier” that relies “chiefly on selections of dissents, concurrences, and law review articles” while “whistl[ing] past precedent.” United States ex rel. Adams v.Chattanooga Hamilton Cty. Hosp. Auth., 2024 U.S. Dist. LEXIS 209546, at *7-9 (E.D. Tenn. Nov. 7, 2024). Other district courts in the Eleventh Circuit have reached the same conclusion. E.g. United States ex rel. Butler v. Shikara, 2024 U.S. Dist. LEXIS 181390, at*40-41 (S.D. Fla. Sep. 6, 2024) (rejecting Thomas dicta as basis to find qui tam unconstitutional).

Indeed, prior to Zafirov, the Sixth Circuit, Ninth Circuit, Tenth Circuit, and Fifth Circuit (en banc) have all affirmatively upheld the constitutionality of the qui tam provisions with robust discussions as to why there is no violation of the appointments clause. See United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 751-58 (9th Cir. 1993); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1040-42 (6th Cir. 1994); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 753-58 (5th Cir. 2001) (en banc); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 804-07 (10th Cir. 2002). Prior to Zafirow and Justice Thomas’s dicta, these appellate courts and district courts nationwide have been near unanimous in concluding relators are not officers subject to the appointmenta cause because (1) their duties are temporary; and (2) they do not wield government power, instead being subject to significant government oversight during the pendency of a qui tam that leaves in place government ability to intervene, monitor and limit discovery, and dismiss or settle the action over relator objections. United States ex rel. Wallace v. Exactech, Inc., 703 F. Supp. 3d 1356, 1366 (N.D. Ala. 2023) (summarizing appellate cases and rejecting argument).

Zafirov acknowledged the statutory provisions that allow the Government to control qui tam litigation but took issue with the fact that judicial review remains and courts must give qui tam relators an opportunity to be heard and express their position. This ignores that the standard is highly deferential and a Court must nearly always acquiesce to the Government’s determination that dismissal or settlement is in the best interest of the United States absent evidence the Government is engaged in active malfeasance. Zafirov is on appeal with the Eleventh Circuit. It seems unlikely that the Eleventh Circuit will break rank with other appellate decisions, but if it does, the case is poised for Supreme Court review.

On-Demand CLE: Profiting from Whistleblower, Qui Tam, and False Claim Cases

CLE, Reuben Guttman Articles, Whistleblower Resources

Over $40 billion has been recovered through whistleblower, Qui Tam, and False Claims Act cases. The demand for attorneys fluent in the latest practices, procedures, and case law has never been greater as the federal government’s whistleblower program has recently issued record setting awards. The average award today in a whistleblower settlement is nearly $450k, while many cases have been settled for well into the seven and eight figure range. At the same time, the latest amendments affecting this practice area have generated a need for counsel to handle related litigation, investigations, and compliance. The Rossdale faculty for the seminar features a national authority on the topic, who will describe successful strategies for the plaintiff’s and defense bar, recent incentive programs, collecting information in a digital age, settlement incentives, post-settlement obligations, and ethical considerations. Registration includes online access to course and reference materials that serve as a helpful guide to the numerous topics and techniques discussed in the program.

Agenda:

Profiting from Whistleblower, Qui Tam, and False Claim Cases CLE:

  1. Obtaining Fees in Whistleblower, Qui Tam, and False Claim Cases
  2. Securing Government Incentives
  3. Handling Compliance & Investigations
  4. Use of “Purloined” Documents and Self-Help Discovery to Prove Retaliation Claims
  5. Increased Focus on “Gag Provisions” in Settlement Agreements
  6. Successfully Litigating False Claim Act Allegations
  7. Unearthing the Fastest Growing Area of Federal Litigation
  8. Cutting-edge Strategies in Whistleblower Cases
  9. Statutory & Decision Update
  10. Techniques in Drafting and Arguing Pleadings
  11. Hot Topics from the Plaintiff’s & Defense Bar

Recorded Question and Answer Session

Biography of Seminar Faculty:

Reuben Guttman is a founding member of Guttman, Buschner PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts. The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications and his commentary has appeared in Market Watch, American Lawyer Media, AOL Government, Accounting Today, and the Jerusalem Post. In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). In 1992, he advised President-elect Clinton’s transition team on labor policy and worker health and safety regulation. Mr. Guttman earned his law degree at Emory University School of Law, where he has been appointed as a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program.

To register or to learn more visit Profiting from Whistleblower, Qui Tam, and False Claim Cases CLE — 24/7 On-demand Recording and Complimentary Podcast – The Rossdale Group, LLC – A National Leader in Attorney Education (mcssl.com)

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