The Impact of Justice Scalia

Saturday 13 February, 2016 was a biting cold day in the nation’s capital that seemed like it would go down in history only for its frigid temperature. By mid-afternoon, news flashed across TV and computer screens reporting the passing of Antonin Scalia, an Associate Justice of the Supreme Court.

With three branches of government, including 535 voting members of Congress, hundreds of federal judges and countless members of the Executive Branch, it is a rare occasion when the passing of a single individual can change the course of American governance. The death of Justice Scalia was one of those occasions. In a court split sharply, five votes to four, along ideological lines, Justice Scalia was not just a part of the conservative majority; he was an outspoken leader. His ‘voice’ was heard in sometimes caustic dissents, in aggressive questioning during oral arguments when he seemingly took the role of advocate, and through his writings and interviews.

He supported efforts to restrict the court’s decision in Roe v Wade, protecting a women’s ‘right to choose’; he rejected constitutional protection of same sex marriage; he voted with the majority in Bush v Gore, effectively deciding the presidency in favour of George Bush; he voted to strike down voting rights laws and he wrote the majority opinion in District of Columbia v Heller, striking down a law banning hand guns while protecting, under the Second Amendment, the right to own firearms. He was an ‘originalist,’ meaning he said the Constitution should be interpreted from only the words written by the ‘Founding Fathers.’ This logic led him to question the court’s intervention that resulted in the de-segregation of the nation’s public schools through the 1954 decision in Brown v Board of Education. Justice Scalia’s ‘originalist’ view also meant he disregarded the contemporary context (such as the wave of shootings in public schools or the attempted assassination of President Reagan, who had appointed him) that caused legislators to press for laws banning guns. At a time when the massive wealth of corporations and a few individuals has been channelled to influence federal elections, Justice Scalia sided with the majority in Citizens United v FEC, striking down provisions of Bi-partisan Campaign Reform legislation regulating the expenditures of corporations and unions in support of political candidates.

As a part of the court’s majority, he was a key vote in procedural changes that have had a sweeping impact on American jurisprudence. Court decisions re-defining pleading standards, restricting class actions and compelling arbitration have fundamentally altered the ability of consumers, and those impacted by pervasive workplace discrimination, to bring cases and do so in an open court of law.

My colleagues across the US have, of course, spent the weekend contemplating the tenure of Justice Scalia and the impact of his passing. Nancy Gertner, a former federal judge in Boston and currently a professor at Harvard Law School, sent me the following thought after writing her own insightful piece on Justice Scalia in The Boston Globe: ‘He was at once principled, trying to see everything through the lens of originalism, and at the same time, rigid, unwilling to admit that his constitutional interpretation was distorted by his own conservative calculus.’

Robert Ahdieh, vice dean and K.H. Gyr professor of private international law at Emory University School of Law in Atlanta, noted: ‘There have been few, if any, more forceful writers among justices of the Supreme Court than Justice Scalia. Combined with his sharp intellect and his deep sense of conviction, and his service on the court will long be remembered.’

Jon Karmel, a Chicago based attorney who is one of the nation’s preeminent union-side labour lawyers, drew specific attention to the impact of the Justice’s passing on labour unions in the US: ‘Public sector unions in the United States, which enjoy a membership rate nearly five times that of private sector unions, were sure to suffer a death blow by the Supreme Court. Until yesterday.

‘In Harris v Quinn, a seemingly small case out of Illinois, the Supreme Court last year held in a decision of five votes to four that a discrete group of public employees, non-union home healthcare workers, could not be charged fair share fees because they were not ‘full-fledged’ public employees. That narrow holding was used as an invitation by the conservative majority to overrule a 1977 decision, Abood v Detroit Board of Education  a precedent that is vital to the very concept of public employee unionism. In paragraph after paragraph, page after page, the main Harris opinion written by Justice Alito sought to undermine the legitimacy of Abood. 

‘The vehicle for destroying Abood is Friedrichs v California Teachers Association, a ginned up case that rocketed out of the Ninth Circuit on the plaintiff’s consent that judgement was appropriate against her based on Abood. Oral arguments were heard last month and a decision in favour of Ms Friedrichs by five votes to four was expected in June. No more. Labour unions and working people dodged a nuclear bomb. Friedrichs would have bankrupted public sector unions, as Scott Walker did in Wisconsin, and political money spent in favour of workers and their issues would have dried up. That is the point of Right to Work and other dues attacks on unions. Until money is taken out of politics, and maybe a new Supreme Court will do just that, the political playing field cannot be one sided.’

President Obama has committed to nominating a replacement for Justice Scalia. Republican Senate Majority Leader Mitch McConnell has threatened to block the Senate confirmation process until the next president has been sworn in. The Majority Leader’s threat is perhaps the litmus test for the significance of what happened this past Saturday.

District of South Carolina Settles Long Term Care Pharmacy Whistle Blower Case Completing Final Leg of Anemia Drug Litigation

Columbia, South Carolina —— A $2.5 million settlement with Pharmerica, a long term care pharmacy servicing hundreds of nursing homes across the nation, completes the final leg of litigation involving the illegal promotion of Aranesp, an anemia drug manufactured by Amgen, Inc.

In 2013, the US Attorney’s Office for the District of South Carolina, The Department of Justice Civil Frauds and a number of states executed a $24.9 million settlement with Amgen in this case. In 2014, Omnicare followed with a $4.19 million settlement. The recent settlement brings the government’s recovery in United States ex rel. Kurnik v. Amgen et al. to just over $31.5 million.

The Kurnik litigation was brought under federal and state false claims act statutes that allow private citizens to bring suit on behalf of the government to recover money expended as a result of fraud or other wrongful conduct. The government intervened in the Amgen and Omnicare portions of the case and the Relator pursued the case against Pharmerica on behalf of the government.

“Public health insurance programs shouldn’t foot the bill for drug company schemes that manipulate doctors and patients to maximize profits,” said South Carolina US Attorney Bill Nettles. “This case is an excellent example of how the government can work together with private whistleblowers to recover money for taxpayers.”

The United States was represented by Assistant US Attorneys Fran Trapp and James Leventis from the District of South Carolina Office.

Kurnik was represented by Dick Harpootlian and Chris Kenney of Richard A. Harpootlian, P.A. in Columbia, South Carolina and Reuben Guttman, Traci Buschner, Justin Brooks and Caroline M. Poplin, J.D., M.D. of Guttman, Buschner & Brooks PLLC in Washington, D.C.

Whistleblower program will be one of the most significant national gatherings of 2016

Feb. 18 and 19, the Center for Advocacy and Dispute Resolution and the Emory Corporate Governance and Accountability Review will partner to present “Fraud Against the Government & SEC Whistleblower Actions Training.” This event will feature more than 20 authorities on fraud, including U.S. attorneys, experts from the U.S. Securities and Exchange Commission and judges.

The training will be held from 8:30 a.m. to 4 p.m. each day in Tull Auditorium, Gambrell Hall at Emory Law.

Reuben Guttman, partner with Guttman Buschner & Brooks, PLLC and senior fellow with the Center for Advocacy and Dispute Resolution, said, “We think that for would-be whistleblowers and their counsel, the Emory program will be one of the most significant national gatherings in 2016. The program will offer them an opportunity to hear directly from regulators about how they can work to maximize their contributions to federal whistleblower programs.”

Attendees can earn up to 12 CLE credits along with the Certificate of Completion of Emory University School of Law’s Advocacy and Dispute Resolution Training in Case Investigation. Registration is now open.

Featured panelists and instructors include:

  • John A. Horn, U.S. Attorney for the Northern District of Georgia
  • William M. Nettles, U.S. Attorney for the District of South Carolina
  • David Rivera, U.S. Attorney, Middle District of Tennessee
  • Sean McKessey, Director, Office of Whistleblower, U.S. Securities and Exchange Commission
  • Benjamin Singer, Chief, Securities & Financial Fraud Unit, Fraud Section, Criminal Division, U.S. Department of Justice
  • Walter Jospin, Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • William P. Hicks, Associate Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Stephen E. Donahue, Assistant Regional Director, Atlanta Regional Office, U.S. Securities and Exchange Commission
  • Randy Chartash, Chief, Economic Crime Section at United States Attorney’s Office
  • Reuben Guttman, Partner, Guttman Buschner & Brooks, PLLC and Senior Fellow, Center for Advocacy and Dispute Resolution, Emory University School of Law
  • John Floyd, Partner, Bondurant Mixson & Elmore LLP
  • Michael A. Sullivan, Partner, Finch McCranie LLP
  • Sam Sheldon, Partner, Quinn, Emmanuel Urquhart & Sullivan, LLP
  • Bob Magnanini, Partner, Stone and Magnanini, LLP
  • David Bocian, Partner, Kessler, Topaz, Meltzer, Check, LLP
  • Traci Buschner, Partner, Guttman, Buschner & Brooks, PLLC
  • Christopher Haney, CPA, CFE, CHC, Forensus Group, LLC
  • Richard Harpootlian, Harpootlian Law
  • Jerry Martinj, Partner, Barrett Johnston Martin & Garrison, LLC
  • Amy Berne, Chief, Civil Division, United States Attorney’s Office, Northern District of Georgia
  • Sally Molloy, Assistant U.S. Attorney at U.S. Attorney’s Office, Northern District of Georgia
  • Paul Zwier, Professor; Director Center for Advocacy and Dispute Resolution, Emory University School of Law
  • Hon. Matt McCoyd, Magistrate Court Judge, DeKalb County; Associate Director Center for Advocacy and Dispute Resolution, Emory University School of Law

The American presidential spectacle

Prominent US trial lawyer Reuben Guttman shares his thoughts on the spectacle that is the US presidential election.

Every four years, the world is treated to the spectacle of the Summer Olympics, where athletes run their legs in a show of skill and strength. Coinciding with this occurrence is the American presidential election, where candidates run their mouths.

The Republicans have enough candidates to stage two debates. Those candidates with lower poll ratings are relegated to sitting at what amounts to the children’s table, where – naturally – the debate starts earlier. Presumably this is so the children can be tucked in while the front runners do their business.

The Democrats only have three major candidates and are having a go at it without any children this time around.

Though hard to discern, there are strategies to these matches of American intellect. Just as an Olympic distance runner saves his or her strength for the final lap, US presidential candidates try not to burn any intellectual reserve this early in the game. Standing behind their podiums, they take notes, adjust their glasses, and give each other gimlet eye glances. The winner is the one who says the least while maintaining the optics of communicating the most.

The Republicans thrive on debating who is a real conservative, who is more electable, and who has more guns.

For their part, the Democratic debate is just as vacuous; is Bernie Sanders a socialist and what extracurricular activities are on the agenda of Hillary’s husband, the former president? The third candidate, Martin O’Malley, seems to get lost in the mix. No surprise there; when he was governor of Maryland, most Marylanders only knew that he was the governor because signs on the highways said so. Sadly, those without an automobile were left clueless.

If Martians were to invade and randomly channel surf, they might actually confuse the debates with a reality TV show. Come to think of it, the Martians would be right.

All of this is unfortunate. There are real issues. The next president will have the ability to make appointments tipping the balance of the judiciary including the Supreme Court. Obamacare is still a work in progress and the next president needs to do something about the Centers for Medicare Services, which in privatising the Medicare system allows more theft than would be sustained by an electronics store with a plate glass window during a lengthy power outage.  There is also much to discuss on the foreign policy front, including a massive trade imbalance and regulation of publicly traded companies in a global economy.

But for now, why talk specifics when we, Americans, are still tuning in to watch the spectacle?

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

VIDEO: Getting Started as a Whistleblower

People who think they’re witnessing corporate fraud undoubtedly have many questions and concerns. This video will help answer some of those initial questions, and you can easily and confidentially contact us if you believe you’ve witnessed fraud.

You’ll find information on the different types of fraud that we work with, including securities fraud, pharmaceutical fraud, medicare/medicaid fraud, defense contractor fraud, fraudulent loans and grants, and finally, federal government contractor fraud.

You can learn about the Federal and State False Claims Act, and can also read the laws.

We’ll provide you with insight into what it means to be a whistleblower. In the Getting Started section, we provide information on what the experience is like, what to do if you think you’ve witnessed corporate misconduct, how to select a whistleblower law firm, and what the process is like as you work with your whistleblower attorneys.

Finally, visit us often for information through a variety of resources in the form of News, Articles, and Frequently Asked Questions. Reuben Guttman, co-founder of Guttman, Buschner & Brooks PLLC, authors an active Blog with insight into current cases and laws.

Do you think you've witnessed fraud in your company?

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