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P H I L a d E L P H I a , T H U R S d a y, J U L y 1 2 , 2 0 1 8
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T H E O L D E S T L A W J O U R N A L I N T H E U N I T E D S T A T E S 1 8 4 3 - 2 0 1 8
VOL 258 • NO. 8 $5.00
regional
new Jersey firms on nlJ 500 . . . . . . . 3With 19 New Jersey-based fi rms among those listed in this year’s NLJ 500, attorney population change fi rm to fi rm was very much a mixed bag, but more fi rms climbed than slid—even though more fi rms shrank than grew.
national
Kavanaugh’s health Care rulings . . . . 4Though Brett Kavanaugh’s past record doesn’t nece ssarily dictate future rulings, if he makes it to
the high court, his D.C. Circuit opinions can be good predictors of how he’ll rule on some key health care-related topics.
young laWyer
Which Job offer to take . . . . . . . . . . . . 5One opportunity does not fi t all, and in order to make the best choices for ourselves, a healthy
dose of self-awareness is required, Julie Brush writes.
health care laW
oig’s exclusions list . . . . . . . . . . . . . . . 7The OIG is obligated to put certain entities and individuals on the list of excluded individuals/
entities, contributor Vasilios J. Kalogredis writes.
indeX
experts & services. . . . . . . . . . . . . . . . 12Classifi ed . . . . . . . . . . . . . . . . . . . . . . . . 13Public notices. . . . . . . . . . . . . . . . . . . . 14legal listings . . . . . . . . . . . . . . . . . . . . 15
– inside the legAl –
www.TheLegalIntelligencer.com
Postal ID on Page 8
We have �ve full-time doctor/lawyers including a cardio-thoracicsurgeon, a hospitalist, an anesthesiologist and two OB/GYNs.
No other American law �rm comes close.
By liZZy mclellanOf the Legal Staff
With its latest lateral hires, P i t t sburgh-
based Babst, Calland, Clements and Zomnir is doubling down on emerging technologies, including driverless ve-hicle technology.
The fi rm this week hired shareholder Justine Kasznica in its mobility, transport and safety group, as well as its corporate and commercial group. Also joining are intellectual property share-holder Carl Ronald and associate Michael Fink, also in the corporate and commercial group.
Kasznica's practice is focused on unmanned aircraft, driverless cars and space
companies. She and Ronald are both joining from Baer Crossey McDemus, a business and technology law boutique with offi ces in Philadelphia and Pittsburgh. Fink was an associate at Buchanan Ingersoll & Rooney.
The additions come a month after Babst Calland added William Godfrey, who was
Pittsburgh’s babst Calland bulksUp its emerging tech Practices
Babst Calland continues on 10
Walgreens Can’t dodgeshareholder suit over failed rite Aid Merger
By maX mitchellOf the Legal Staff
Overconfi dent statements Walgreens offi -cials made as its proposed merger with Rite Aid began to show signs of crumbling pos-sibly misled shareholders, a federal judge has ruled in declining to dismiss a share-holder class action suit against the pharmacy company.
U.S. District Judge John Jones of the Middle District of Pennsylvania on Wednesday denied Walgreens' motion to dismiss Hering v. Rite Aid. The lawsuit was fi led over allegedly false and misleading statements both Walgreens and Rite Aid made to shareholders while the two compa-nies attempted to work out a merger.
Although Jones' ruling keeps Walgreens in the case for now, his decision also granted a similar motion Rite Aid had fi led seeking to be let out of the case.
Walgreens continues on 10
By scott FlahertyThe American Lawyer
The U.S. legal industry added 4,800 jobs in June as the country’s overall econ-omy continued an uninterrupted streak of monthly job growth, according to U.S. Labor Department data released July 6.
The agency’s Bureau of Labor Statistics issued its monthly look at the employment situation in the United States, showing a rebound in the legal services sector after more tepid results in May. BLS reported that 1,141,400 people were employed in legal services in June, a fi gure that includes lawyers, paralegals, legal secretaries and
Us labor department data: Junebrings Uptick in legal employment
By Katheryn tucKerOf the Legal Staff
Following months of litigation and arbitra-tion, lawyers have secured the restoration of benefi ts they estimate will be worth some $10 million to union oil refi nery workers.
Arbitrator restores benefi ts for Union oil refi nery Workers
Benefi ts continues on 11Employment continues on 11
Pictured, from left, are Carl Ronald, Justine Kasznica and Michael Fink.
2 • THE LEGAL INTELLIGENCER THURSd a y, J U L y 1 2 , 2 0 1 8 VOL P. 242
AdditionsTaylor Gerchmanis a new associ-ate at Goldberg, Miller & Rubin’s Philadelphia offi ce.
Prior to joining Goldberg Miller, Gerchman worked for different types of practices including
a fi rm representing plaintiffs and a fi rm specializing in mass tort products liability claims.
Gerchman now handles commercial property management, general liability and automobile negligence claims.
sPeAKersCedrone & Mancano founding partner Joseph D. Mancano presented at the National Association of Criminal Defense Lawyers’ eighth annual West Coast White-Collar Conference in Santa Monica, California.
Mancano moderated a panel presen-tation titled “Defending Health Care Defendants—Fighting the Multifront War.”
The presentation dealt with health care fraud enforcement priorities under the cur-rent federal administration and emerging trends in health care enforcement under federal and state law, both criminal and civil.
Mancano focuses his practice on both civil and criminal litigation in federal and state courts throughout the United States.
He also handles federal and state ap-peals, and represents clients in regulatory enforcement proceedings.
eleCted And APPointedMunley Law partner Marion Munley is the fi rst woman in the country to chair the American Association for Justice trucking litigation croup.
Munley, a board-certifi ed personal injury lawyer and advocate for victims’ rights who specializes in commercial truck ac-cident and products liability cases, was appointed as chair at the 2018 AAJ annual convention.
Munley will serve in the position for one year.
Members of the trucking litigation group handle cases involving motor-carrier and owner-operator liability.
Priscilla Jimenez was voted in and ap-proved by the Pennsylvania Association for Justice to be the Pennsylvania minority governor to the American Association for Justice.
Before starting at Kline & Specter, where she concentrates on mass torts and personal injury litigation, Jimenez worked for three years at the Locks Law Firm in Philadelphia.
In prior employ-ment, Jimenez worked as a law clerk with Thomas Jefferson University Hospitals’ Office of General Counsel and had a stint as an assistant with the U.S. Department of
Health and Human Services, Offi ce for Civil Rights.
honoredPennsylvania Bar Association presi-dent Charles Eppolito III named 11 Pennsylvania lawyers to the 2018-19 class of the association’s Bar Leadership Institute.
• Mollie Patterson, Beaver County Public Defender’s Offi ce and Law Offi ce of Mollie K. Patterson.
• Michelle Ross, The Elder Law Offi ce of Olimpi & Kramer.
• Gabriela Raful, Galfand Berger.• Andrea Boyle, Boyle & Price.• Jessica Jones, Monroe County Court of
Common Pleas.• Karen Grethlein, Marshall Dennehey
Warner Coleman & Goggin.• Raphael Castro, Pond Lehocky Stern
Giordano.• Peter Johnson, Pennsylvania Superior
Court.• Zane Johnson, Philadelphia Lawyers
for Social Equity.• Skye Nickalls, Dilworth Paxson.• Thomas Markey, McNees Wallace &
Nurick.This year’s BLI co-chairs are Melinda
C. Ghilardi, Office of the Federal Public Defender, U.S. District Court for the Middle District of Pennsylvania, and Philip H. Yoon, Pennsylvania Superior Court. •
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VOL P. 243 THURSd A y, J U L y 1 2 , 2 0 1 8 T H E L E G A L I N T E L L I G E N C E R • 3
R E G I O N A L N E W S
By daVid gialanellaNew Jersey Law Journal
With 19 New Jersey-based fi rms among those listed in this year’s NLJ 500, attorney population
change fi rm to fi rm was very much a mixed bag, but more fi rms climbed than slid—even though more fi rms shrank than grew.
Total attorney population among all 500 fi rms (using full-time equivalents) increased by about 1 percent in 2017, which was a slower growth rate than that of 2016 (2 percent), Legal affi liate The National Law Journal reported.
The survey also found that population growth at the top 350 fi rms far outpaced that of the bottom 150 fi rms.
The picture is more nuanced for the New Jersey contingent, whose fi rms saw changes ranging from 9.9 percent population growth to 10.3 percent population decrease, ac-cording to data collected by ALM Legal Intelligence.
Of the 19 New Jersey fi rms, eight had a positive population growth rate, while 11 had a negative growth rate. Interestingly, though, some fi rms still gained ground despite losing a few attorneys: 12 moved up the rankings, while six moved down, and one maintained the same rank from last year.
It’s worth noting that additions and depar-tures at fi rms with smaller head counts will beget more dramatic rates of change. And,
of course, attorney population doesn’t tell the whole story of law fi rm performance or strategy.
With that in mind, here’s how each New Jersey fi rm, in order of fi rmwide head count, stacked up.
• McCarter & English, with a net increase of one in attorney head count, had an essen-
tially fl at rate of growth, and dropped one spot in the rankings, to 116th.
• Lowenstein Sandler’s head count de-creased 2.3 percent, to 268 total lawyers, yet it climbed two spots, to 158th.
• Day Pitney’s population decreased 4.9 percent, to 252 lawyers. That was the third-highest rate of decrease among New Jersey fi rms. Still, it climbed one spot, to 166th.
• McElroy, Deutsch, Mulvaney & Carpenter had a net decrease of two attorneys, to 247 total, meaning a 0.7 percent decrease. But it climbed four spots, to 170th. (Not accounted for in the NLJ 500 data is the fi rm’s more recent addition of 20 lawyers via its 2018 acquisition of Graham Curtin.)
• Archer had a net loss of two law-yers, to 176 total (a 1.1 percent decrease),
but occupied the same spot as last year (223rd).
• Gibbons’ net loss of two lawyers, to 175 total, meant a 1.3 percent decrease, but the fi rm climbed one spot, to 225th.
• Bressler, Amery & Ross had the third-largest population increase—4.5 percent—to 163 total lawyers. The fi rm
climbed 14 spots, to 243rd, following a 49-spot climb the previous year.
• The attorney population at Riker Danzig Scherer Hyland & Perretti decreased by three (to 140, a 2.4 percent change), and the fi rm slid nine spots, to 290th.
• Norris McLaughlin & Marcus increased attorney head count by two (to 139, a 1.5 percent change), and climbed eight spots in the rankings, to 291st.
• Cole Schotz had the second-highest growth rate (8.8 percent) among New Jersey fi rms, in-creasing total head count to 136. It shot up the rankings 31 spots, to 299th. (Earlier this year, the fi rm made its fi rst appearance on the Am Law 200, which ranks fi rms by gross revenue.)
• Sills Cummis & Gross’ 134 total included a net gain of two lawyers, a 1.5 percent
increase, and the fi rm climbed fi ve spots, to 306th.
• The net loss of three lawyers at Chiesa Shahinian & Giantomasi, to 130 total, was a 2.3 percent decrease, and the fi rm fell six spots, to 312th.
• Connell Foley’s net gain of one lawyer meant a change of 0.8 percent, and the fi rm climbed fi ve spots, to 321st.
• Wilentz, Goldman & Spitzer had the second-highest rate of decrease—by 5.5 percent—to 103 total lawyers. It slid 20 spots in the rankings, to 381st.
• Hoagland, Longo, Moran, Dunst & Doukas’ head count increased 2.1 percent, to 99 total, and it climbed seven spots, to 396th.
• Capehart & Scatchard’s net gain of one attorney, to 91 total, meant a 1.1 percent change, and a move up three spots, to 424th.
• Greenbaum Rowe Smith & Davis saw a population decrease of 3.2 percent, to 91 total, and slid nine spots in the rankings, to 425th.
• Porzio, Bromberg & Newman had the highest growth rate, at 9.9 percent, as its total attorney population increased to 89. The fi rm made a 52-spot jump up the rank-ings, to 436th.
• Stark & Stark had the largest popula-tion rate decrease. The 10-lawyer loss, to 87 total, was a 10.3 percent change. The fi rm slid 41 spots, to 441st.
David Gialanella can be contacted at [email protected]. •
Where did new Jersey law firms land on the nlJ 500?
Of the 19 New Jersey fi rms, eight had a positive population growth rate, while 11 had a negative growth rate.
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4 • THE LEGAL INTELLIGENCER THURSd a y, J U L y 1 2 , 2 0 1 8 VOL P. 244
By Kristen rasmussen The National Law Journal
Health care issues, namely the pre-existing-conditions provision of the Affordable Care Act and access to
abortion, are likely to animate the confirma-tion process for President Donald Trump’s second U.S. Supreme Court nominee, Brett Kavanaugh.
And with a dozen years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh’s record does show that he’s taken views on these contro-versial issues.
Though Kavanaugh’s past record doesn’t necessarily dictate future rulings, if he makes it to the high court, his D.C. Circuit opinions can be good predictors of how he’ll rule. Here’s how Kavanaugh has come down on some key health care-related topics:
AffordAble CAre ACtThe Affordable Care Act has been hit with
challenges from state attorneys general, and the Trump administration has rejected key as-pects of the law. But what would Kavanaugh do—or what has he done—around the health care law?
In 2011, Kavanaugh upheld the Affordable Care Act and found that federal courts had jurisdiction to rule in the case in spite of the Anti-Injunction Act. Without opining about the ACA itself, Kavanaugh dissented on the jurisdictional point, writing: “For judges, there is a natural and understandable incli-nation to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal stat-ute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.”
Kavanaugh critics described that ruling as writing “a road map for saving Obamacare.”
A few years later, in 2015, Kavanaugh wrote that the ACA’s requirement that em-ployers cover contraception in their employ-ees’ health-insurance plans violated religious liberty protections.
And in 2016, Kavanaugh was a member of a unanimous three-judge panel that rejected what it called an “unusual” challenge by West Virginia to the Obama administration’s decision in 2013 not to enforce certain ACA provisions during a transitional period after the health care law’s enactment.
AbortionLast fall, Kavanaugh dissented in an im-
migration case in which the D.C. Circuit, in an en banc decision, vacated an order that blocked an undocumented pregnant teenager from having an abortion.
He wrote: “The en banc majority … re-flects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by government efforts to help minors navi-gate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.”
In deeming the majority’s decision “incon-sistent with the precedents and principles of the Supreme Court,” Kavanaugh reiterated the standard for the government’s regulation of abortion: it may impose reasonable regula-tions that are not unduly burdensome.
the fdADuring his time on the bench, Kavanaugh
has dealt both wins and losses to the U.S. Food and Drug Administration.
In 2010, for example, he was a mem-ber of the three-judge panel that ruled the FDA lacks the authority to regulate e-cigarettes as drugs or devices under the Food, Drug and Cosmetic Act as long as they are not marketed as smoking-cessa-tion products or for other therapeutic pur-poses. Six years later, the FDA finalized a rule that allows it to regulate all tobacco products, including electronic nicotine delivery systems.
And in 2014, Kavanaugh wrote the opinion for a 2-1 court that found the FDA lacked the authority to rescind approval for a surgical mesh device to be used in knee-replacement surgeries.
Allowing the FDA to assert inherent au-thority to reclassify medical devices would make the section of the Food, Drug and Cosmetic Act that provides for a notice-and-comment process when a medical device
is going to be reclassified a “dead letter,” Kavanaugh said.
“Notice and comment helps to prevent mistakes, because agencies received more input and information before they make a final decision,” Kavanaugh wrote.
A year earlier, however, a Kavanaugh-led three-judge panel of the D.C. Circuit sup-ported the FDA in a medical device manufac-turer’s suit over the agency’s decision to deny quick approval for the devices. He wrote that courts are “ill equipped to second-guess that kind of agency scientific judgment.”
heAlth CAre MergersThe market for health care mergers has been
on a roll for several years. Would a Justice Kavanaugh keep that momentum going?
Last year, Kavanaugh dissented from the D.C. Circuit’s rejection of Anthem Inc.’s proposed $54 billion acquisition of Cigna Corp. The majority of the court upheld a trial judge’s decision to block the deal on the grounds that it would substantially reduce competition.
Kavanaugh said in his dissent, however, that the Anthem-Cigna deal should be saved for the cost savings it would create for consumers.
“The merged Anthem-Cigna would be a more powerful purchasing agent than Anthem and Cigna operating independently,” he wrote. “The merged Anthem-Cigna would therefore be able to negotiate lower provider rates on behalf of its employer-customers. Those lower provider rates would mean cost savings that would be passed through directly to the employer-customers.”
Kristen Rasmussen can be contacted at [email protected]. •
By scott Flaherty The American Lawyer
Two New Orleans-area judges accused of sexual misconduct currently face a similar fate: they have been banned by the Louisiana Supreme Court, at least temporarily, from hearing cases.
One of the judges, Jeff Perilloux of St. John the Baptist Parish, stands accused in a criminal indictment of sexually assaulting three teenage girls, according to court docu-ments and local news reports. The other, a criminal district judge in Orleans Parish named Byron C. Williams, is under inves-tigation by a judicial commission based on complaints that he groped a court clerk and made inappropriate comments from the bench.
While the accusations against the two judges are not connected to each other and involve different types of alleged sexual mis-conduct, for both judges, the state Supreme Court issued recent “interim disqualifica-tion” rulings that barred the men from sit-ting on the bench while their respective cases are pending. The Louisiana high court handed down the temporary disqualification of Perilloux on June 29 and the temporary disqualification of Williams on July 2.
Both judges have denied the accusations. A lawyer representing Perilloux, David Courcelle, didn’t immediately respond to a request for comment nor did a lawyer repre-senting Williams, Ernest Jones.
Of the two cases, Perilloux’s appears to involve more serious allegations, as indi-cated by the criminal charges he faces. State prosecutors have accused the judge of com-mitting lewd and lascivious acts on two teen-age girls in May and June of 2017, and of intentionally touching the breasts of another girl in December 2017. A grand jury handed down an indictment in late June, charging the judge with three felony counts of inde-cent behavior with a juvenile and one count of misdemeanor sexual battery.
Perilloux, according to local news outlets, is also under investigation for an alleged in-cident involving a 15-year-old girl—a friend of the judge’s daughter who accompanied Perilloux and his family on a trip to Destin, Florida, in July 2017. The girl told authori-ties that she ended up alone with Perilloux in his bedroom after approaching him to ask for a later curfew during the beach vacation. She said the judge then put his fingers into the bottom portion of her swimsuit.
The same girl also reported to authori-ties that the judge had, on at least two other
la. Judges benched Amid Allegations of sexual Misconduct
how Might Kavanaugh rule on health Care as Us Justice?
Misconduct continues on 8
N A T I O N A L N E W S
Photo by Diego M. Radzinschi
Judge Brett Kavanaugh addresses the assembled audience in the East Room of the White House moments after President Donald Trump nominated him Monday to the U.S. Supreme Court.
PICS call today 877-256-2472
VOL P. 245 THURSd A y, J U L y 1 2 , 2 0 1 8 T H E L E G A L I N T E L L I G E N C E R • 5
By Julie BrushThe Recorder
Q: I have two offers. Which one should I take?
• The first offer: OK company, broader role, higher up in legal, 10 percent base salary increase.
• The second offer: Amazing company, narrower role, but cutting-edge experience. Same title.
A: Congratulations on receiving two of-fers. Not an easy feat, so it’s a noteworthy accomplishment. Both opportunities have virtues. But determining which position constitutes the best career move will de-pend on your priorities and your goals. Do you know what yours are? If not, it’s time to find out.
The path to self-awareness can be a dark, scary place. And many avoid it if they can. But if you want to have a fulfilling career—and life—you need to know the basics: who you are, what you want and what you need. And when you do, each choice you make will keep you on the happiness track. The examination of your inner psyche doesn’t have to be daunt-ing. It can be an enjoyable exercise if you have a palatable approach and a good guide.
The primary question before you is which of these two offers would be the best choice. In order to arrive at a definitive answer, you’ll need to take a stroll down self-awareness lane. Below are several rel-evant questions to ask yourself:
• Where do I see my career in three-five, five-10 years? What will be the most important factors that will get me there: A broader range of skills? A high-pro-file company? Size of legal department? Cutting-edge experience?
• What kind of future career options would I create for myself with each opportunity?
• How essential is growth and advancement to me? What are the pros-pects with each of these companies?
• How important is the company itself for me? Blah versus amazing.
• Do I prefer a broader role or is a nar-rower role OK if the work is exciting?
• How important is the money? Am I OK with the lower compensation if there are other great things that will outweigh it?
• Is there an op-portunity to ne-gotiate a higher c o m p e n s a t i o n package for the second offer? If so, will that make a difference in my level of interest?
• What kind of culture do I like? Which culture do I like better between these two companies? How well would I work with each group with whom I met? Do I like one group better than the other?
• How do the hours look at each of these companies? Will I have any flexibility with my time? If so, how much of a differ-ence does it make?
• If I had to rank all these preferences in order of priority, what would they be?
• Which priorities are must-haves and which are nice-to-haves?
Once you’ve completed this exercise, take some time to pro-cess all the information. Then, do a gut check. By this time, your instincts should be pretty strong. And instincts are never wrong. So listen to them if you have a strong sense of which opportunity is the most compelling for you and move in that direction.
One opportunity does not fit all, and in order to make the best choices for ourselves, a healthy dose
of self-awareness is required. Once we master the basics, choices become easier and life becomes a bit better. So complete this inner inquiry and you’ll discover the signs that will point you in the direction that’s best for you and your career.
This article first appeared in The Recorder, an ALM affiliate. •
i have two good Job offers. Which one should i take?YOUNG LAWYER
One opportunity does not fit all, and in order to make the best choices for ourselves, a healthy dose of self-awareness is
required.
JUlie brUsh is the founder and author of The Lawyer Whisperer (www.thelawyerwhisperer.com), a career advice column for legal professionals, also found on LinkedIn. She is co-founder of Solutus Legal Search, a legal search/consulting bou-
tique firm, serving as a strategic adviser to lawyers, law firms and corporations.
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6 • THE LEGAL INTELLIGENCER THURSd a y, J U L y 1 2 , 2 0 1 8 VOL P. 246
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VOL P. 247 THURSd A y, J U L y 1 2 , 2 0 1 8 T H E L E G A L I N T E L L I G E N C E R • 7
By Vasilios J. KalogredisSpecial to the Legal
On May 17, Immediate Home Care (IHC), a home health care com-pany headquartered in Bensalem,
settled a dispute with the Department of Health and Human Services’ (HHS) Office of the Inspector General (OIG). The $189,445.68 settlement resolved al-legations that IHC employed an individual excluded from participating in any federal health care program who, while with IHC, did participate in such programs. According to the results of the OIG’s in-vestigation, the home health care nurse in question provided home health care items or services to IHC’s patients that were subsequently billed to federal health care programs.
That settlement follows a $141,986.36 settlement on Feb. 13 of this year be-tween the OIG and an Oklahoma City-based skilled nursing company called Southwest Trinity Management (STM). STM owned and managed a nursing facil-ity in Oklahoma City that the OIG alleged employed a licensed practical nurse who was likewise excluded from participating in any federal health care programs. As in the IHC case, the allegations against STM involved a single employee whose
services were billed to federal health care programs.
The basis for the claims against the two companies is the Civil Monetary Penalties Law, which empowers the HHS secretary to assess civil monetary penalties against those who bill federal health programs falsely, fraudulently, or otherwise improp-erly. The foregoing examples in Bensalem and Oklahoma City fall into the “otherwise improperly” catch-all category. Section 1128 of the Social Security Act grants the OIG the authority to exclude individuals and entities from any federally funded health care program, including Medicare and state health care programs. The au-thority is not reserved solely for licensed providers and may be applied against any individual or entity (I/E), including sup-port and administrative staff. Anyone who hires such an excluded individual, even unknowingly, and bills a federal health care
program for items and services provided by or through that individual is subject to civil monetary penalties.
The OIG is obligated to put certain entities and individuals on the list of ex-cluded individuals/entities (LEIE)—the so-called mandatory exclusions. It has dis-cretion with regard to including others, known as permissive exclusions, on the list. The former group includes entities and individuals convicted of criminal offenses such as Medicare or Medicaid fraud, pa-tient abuse or neglect, and felony convic-tions for other health care-related fraud, theft, or other finan-cial misconduct. That group also includes those with a felony conviction related to unlawful manufacture, distribution, pre-scription, or dispensing of controlled sub-stances. The OIG has no choice but to include such entities and individuals in the exclusions database.
The latter group includes those over whom the OIG exercised its discretion and decided under the circumstances that the behavior in question required the individual’s inclu-sion on the LEIE. Such behavior includes misdemeanor convictions related to health
care fraud (exclud-ing Medicare or state health programs) and misdemeanor con-victions relating to the unlawful manu-facture, distribution, prescription, or dis-pensing of controlled substances. It also includes those whose medical license was suspended, revoked, or surrendered due to competence, profes-sional performance, or financial integrity, and those who pro-vided unnecessary or inadequate services, previously submitted
false or fraudulent claims to a federal health care program, engaged in unlawful kickback arrangements, and defaulted on health edu-cation loans or scholarship obligations.
Are Your Client’s employees on the oig’s exclusions list?
Health Care Law continues on 8
VAsilios J. KAlogredis is chair-man of Lamb McErlane’s health law department. He represents many medical and dental groups and thousands of individual physicians and dentists.
Anyone who hires such an excluded individual, even unknowingly, and
bills a federal health care program for items and services provided by or
through that individual is subject to civil
monetary penalties.
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8 • THE LEGAL INTELLIGENCER THURSd a y, J U L y 1 2 , 2 0 1 8 VOL P. 248
occasions in Louisiana, touched her breasts while giving her a massage, according to a report in The New Orleans Advocate, which cites information from anonymous law enforcement offi cials. The judge is scheduled to appear in court as a defendant on July 19.
Williams, the other judge facing allegations of misconduct in Louisiana, is not the subject of a criminal case. Instead, the state’s Judiciary Commission is reportedly looking into allega-tions that he groped a female court clerk who was on the staff of another judge. Once that complaint was made, another woman stepped forward with claims that Williams made inappropriate remarks during a weekly Drug Court session.
The investigation into Williams, who is also a former federal and state prosecutor in
Louisiana, has been taking place under a veil of confi dentiality. That is standard practice for the Louisiana Judiciary Commission—unless the body eventually recommends to the state’s high court that a judge be disci-plined or forced off the bench, according to the commission.
As of Tuesday, no formal recommendation from the commission had been made public.
Scott Flaherty can be contacted at sfl [email protected]. •
Before excluding any I/E, the OIG provides the I/E with a notice of intent to exclude. In response, the I/E will have the opportunity to provide any mitigating, de-fensive or potentially exculpatory materials and information. The OIG will review what is timely provided before deciding whether inclusion on the LEIE is appropriate. If the OIG thereafter decides to include the I/E on the exclusions list, then that I/E has the opportunity to appeal the OIG’s decision to an administrative law judge. After receiv-ing an adverse decision from the judge, the I/E may appeal to the HHS’s Departmental Appeals Board and thereafter to a Federal court. Put simply, the OIG’s decision is subject to considerable review and the excluded I/E is entitled to comprehensive due process.
Not everyone disputes their inclusion on the LEIE. In fact, for those who face
OIG allegations of misconduct of one sort or another (either personally or through an employee), that I/E may negotiate a voluntary exclusion lasting a particular number of years as part of the terms of a settlement.
For those who discover an issue be-fore the OIG does, the OIG clarified its guidelines in 2013 to assist entities and individuals with self-disclosure. Such self-disclosure may assist in avoiding or limiting potential liability. Employers who discover that one of their employees is on the LEIE, for example, may disclose that information to the OIG along with an estimate of the damages related to the employee. Before the 2013 guideline clarifications, such an estimate proved difficult to calculate. This is because, as stated above, it is not only billing individu-als, such as physicians, who are subject to exclusion. Therefore, properly estimating the damages incurred as a result of an excluded administrative assistant’s vari-ous tasks remained a matter of debate. As
a result, the OIG provided a suggested process for self-disclosers to follow.
Often, clients looking to hire a new pro-vider or staff member fail to consider the LEIE before moving forward with an other-wise qualifi ed candidate. Various companies offer compliance software that simplifi es searching and alerting, but such assistance is only helpful if the exclusions database is on the client’s radar. Once it is, HHS offers a rather helpful search tool on its website and allows anyone to download updated versions of the LEIE. The moral of the story, there-fore, is to keep the exclusions list in mind—and in the mind of your clients—and ensure that any hiring process includes a search of the LEIE. Better yet, given the potentially lengthy appeals process, your health care employer clients would do well to regularly run all of their current employees through a search of the LEIE.
Andrew Stein, an associate at Lamb McErlane who focuses his practice on health and business law, assisted in the preparation of this article. •
Misconductcontinued from 4
health Care lawcontinued from 7
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Regarding the Rite Aid defendants, Jones found that statements company officials made were immune from liability under the "safe harbor" provision of the Private Securities Litigation Reform Act, which does not allow companies to be sued for broad, forward-looking statements about revenue and performance that are based on solid information.
Many of the contested statements Walgreens made fell under that immunity as well, Jones said. However, statements company officials made as late as October 2016 that questioned media reports about
the faltering merger and instead ex-pressed confidence the deal would close were potentially misleading, Jones said.
Jones noted that the closing date of the merger, which eventually did not happen, had already been pushed back three months at that point. He also noted that company officials indicated to shareholders that they had non-public information on which to base their optimism.
"The Walgreens defendants ventured into actionable territory when they openly con-tradicted news reports of regulatory trouble alluding to their non-public 'inside' knowl-edge of the [Federal Trade Commission's] review. Plaintiff alleges that Walgreens, by the time of the statements, had ample reason to understand that the merger was in
trouble," Jones said. "Indeed, once the FTC raised concerns and the original terms of the merger needed to be revised, one would expect Walgreens defendants to soften their aggressively confident stance. Instead, the Walgreens defendants seemed to double-down and disputed reports that the transac-tion may falter."
Jones noted that in order to succeed with their claims, the plaintiffs would need to show they either knew the statements were potentially misleading, or made the statements recklessly. Given how close the statements came to an earlier revision of the merger agreement and the ultimate decision to terminate the merger, the state-ments showed "a strong inference at least of recklessness," Jones said.
"There may be plausible alternative explanations, but at this early stage, we find that plaintiff has pled sufficient facts to strongly infer that Walgreens was at least reckless in making statements that would mislead a reasonable investor about the level of regulatory risk," Jones said.
Kaufman, Coren & Ress attorney Deborah Gross, who is representing the plaintiffs; Cliff Gardner of Skadden, Arps, Slate, Meagher & Flom; and Kristen Seeger of Sidley Austin, who is representing Walgreens, each did not return a call for comment late Wednesday.
Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI. •
Walgreenscontinued from 1
a senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration.
"When I was approached by a recruiter who talked about Babst Calland, I had known of them as an oil and gas, environmen-tal firm," Kasznica said. But she quickly learned that the firm was also investing in its technology-related practices. A major selling point, she said, was that Babst Calland last year had hired Timothy Goodman, a former U.S. Department of Transportation lawyer, in Washington, D.C. He now leads the firm's mobility, transport and safety group.
"In working with frontier technology, you’re essentially required to try to under-stand and work alongside policy and regula-tions that are either nascent, nonexistent or present but need to be adapted," Kasznica said. "The channel to Washington, D.C., and the fact that Babst Calland has strategically built and focused on building that office … is absolutely critical and critical for the compa-nies that will be working with us."
Kasznica grew up interested in model aircraft and aviation, she said, then began to learn more about robotics during law school, through a friend of hers at Carnegie Mellon University. That friend ended up starting a company that became Kasznica's first client when she was an associate at Wolf Block.
She stayed involved in the local startup scene after moving to Pittsburgh in 2008, including her own work as a founding member of ReefBot—a project in which Carnegie Mellon, the Pittsburgh Zoo and PPG Aquarium are working to develop au-tonomous underwater vehicles.
Ronald practiced as a solo lawyer for nine years, and just joined Baer Crossey earlier this year. His clients include cybersecurity businesses and medical device companies, as well as a number of startups.
"Like Justine, I needed some support for what I do," he said. And Babst Calland "really [is] putting a huge effort into owning this robotics and autonomous space here in Pittsburgh."
While he doesn't work directly on regula-tory issues, he said, the firm's investment in
having a Washington, D.C., technology law presence "shows a desire on behalf of the firm, and an emphasis on that practice area."
"Justine, Carl, and Michael are well-re-spected, accomplished legal professionals with backgrounds and experience unique to the industries and clients they serve," Babst Calland managing shareholder Donald Bluedorn said in a statement. "They join forces with Babst Calland’s existing multi-disciplinary team focusing on the needs and expectations of startups and companies with emerging technologies."
Baer Crossey did not respond to a request for comment.
Lizzy McLellan can be contacted at 215-557-2493 or [email protected]. Follow her on Twitter @LizzyMcLell. •
babst Callandcontinued from 1
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Arbitrator Thomas McConnell Jr. issued an order June 22 instructing Philadelphia Energy Solutions Refi ning and Marketing to return benefi ts the company cut in January 2017. Those cuts included reducing the company’s contributions to medical plan costs from 80 percent to 70 percent, and cash option retirement plans from 7 percent of pay to 0 percent.
“The grievance is sustained,” McConnell wrote. “The company is ordered to make bargaining unit employees whole for the losses sustained due to the unilateral changes at issue here.”
The company’s defense was that the
changes were necessary because Philadelphia Energy Solutions was in fi nancial distress and under bankruptcy reorganization. But union lawyers argued that the company was bound by the collective bargaining agree-ment, which prohibited unilateral changes such as the ones at issue.
McConnell said he will retain jurisdic-tion over the case for 90 days. “During that time, either or both parties may invoke this continued jurisdiction should there be any dispute about the remedy issued.”
The action was lodged by the United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Services Workers Union, Philadelphia Local 10-1.
“The decision is a very solid win for local unions,” said Debra Jensen of Galfand Berger in Philadelphia, who represented the
union with partner Michael McGurrin of her fi rm, as well as Abigail Carter and Elisabeth Oppenheimer of Bredhoff & Kaiser in Washington, D.C.
“We looked at this as a case where PES made a unilateral decision in violation of its collective bargaining agreement and shirked its duties to its employees, who keep its Philadelphia refi nery open,” Jensen said. “They do the heavy work that moves that oil from the trains or the ships to the pipelines and out again.”
She estimated the refi nery processes 350,000 barrels of crude oil a day, and the decision “makes the employees whole.”
Thomas Giotto and Bobbi Britton Tucker of Cozen O’Connor in Pittsburgh repre-sented the company. They could not be reached for comment.
The decision is likely to resound with union lawyers because it restores benefi ts only to members. In this case, of the 1,100 workers affected, only 700 are union mem-bers, according to Jensen, the daughter of a union worker and, in her words, "a union baby." She said when her father died at the age of 93, he still had his painters’ union card in his wallet.
“In 38 years of practicing law, I’ve never seen anything so profoundly signifi cant as this decision, which says, 'You 700 to the left, here are your checks. You 400, go to the right and get back to work,'" she said.
The math is still being worked out, but Jensen said she expects the issues to be resolved and the benefi ts repaid in August.
Katheryn Tucker can be contacted at [email protected]. •
benefi tscontinued from 1
other law-related professions. The jobs data released last week is seasonally ad-justed and provisional, meaning it could be revised later.
Also on July 6, BLS revised upward the legal jobs numbers in May. Initially, the agency showed a decline in May of 200 jobs as compared with the prior month. But in the July 6 revised fi gures, BLS reports
that the legal services industry actually gained 300 jobs in May, compared with April.
June’s fi gures mark another increase—this time of 4,800 jobs. At more than 1.141 mil-lion people employed in the industry in June, the legal jobs fi gures edged outside of a range that has prevailed since December 2016. From that time to now, the legal industry has experienced fl uctuations but has generally employed between 1.13 mil-lion and 1.14 million people, according to historical BLS data.
The employment fi gures in June also con-stitute an uptick compared with June 2017, when the industry employed 1,139,500 people, according to BLS.
The legal services employment numbers come amid a generally positive jobs report for the U.S. economy as a whole, which gained 213,000 jobs in June and reportedly outperformed economists’ expectations. That result marks the 93rd consecutive month of job growth in the United States.
Overall, the country’s unemployment rate rose by 0.2 percent to 4 percent, but
BLS also reported that the number of discouraged workers—people who are out of work but aren’t looking for jobs because they don’t think anything’s available for them—decreased by 155,000 compared with June 2017.
Hourly wages for private, non-farm jobs in the U.S. increased by fi ve cents to $26.98 per hour, according to the preliminary BLS data issued last week. That marks a 72 cent increase for average hourly earnings over the year so far.
Scott Flaherty can be contacted at sfl [email protected]. •
employmentcontinued from 1
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