ACLU Challenges Gov't Secrecy in the False Claims Act
Headline Legal News | 2009/01/20 17:11
The federal government has been defrauded of billions of dollars in hundreds of cases it has sealed under the False Claims Act, the ACLU claims in Federal Court. "The result of the secrecy provisions is that the federal court system is home to an entire secret docket of cases that is inaccessible to the public and the press," including more than 60 such cases in Iraq, according to the complaint.
    The ACLU claims Congress inserted unconstitutional secrecy amendments into the Act in 1986.
    Joining the ACLU as plaintiffs are OMB Watch and the Government Accountability Project.
    The plaintiffs "challenge the constitutionality of the secrecy provisions in the FCA, specifically §§ 3730(b)(2) and (b)(3) (together, the 'FCA secrecy provisions'). The FCA secrecy provisions are unconstitutional on their face. Plaintiffs seek a declaration that they violate the public's First Amendment rights."
    The plaintiffs sued Attorney General Michael Mukasey and Fernando Galindo, "the Clerk of the Court in the United States District Court, Eastern District of Virginia. The Clerk of the Court is the officer of the court that seals the complaints as required by the statute challenged in this case."
    According to the complaint, Congress enacted the False Claims Act in 1863 to "combat rampant fraud in Civil War contracts." It was substantially amended only twice. The 1943 amendments were to prohibit "so-called parasitic actions," in which individuals filed qui tam actions "based entirely on public allegations found in criminal indictments against World War II contractors. ... The Act was amended such that jurisdiction over FCA claims was barred if the claims were based on information in the government's possession.
    "In 1986, as a result of a decline in FCA suits, Congress amended the FCA to encourage private individuals to bring more FCA suits. The legislation increased incentives, financial and otherwise, for private individuals to bring suits on behalf of the government. Congress also set out to right a number of overly restrictive court interpretations of the FCA that were making it difficult for whistleblowers to succeed in FCA suits. Finally, to encourage more whistleblowers to file FCA suits, Congress enacted an anti-retaliation provision to protect whistleblowers from reprisal for initiating or aiding an FCA disclosure and lawsuit.
    "As part of the amendments in 1986, Congress enacted the secrecy provisions at issue. Thus, for the first 123 years of the existence of the FCA, qui tarn complaints were not filed under seal and were accessible to the public. Only in the last 22 years have all FCA qui tarn complaints filed by relators been automatically placed under seal and inaccessible to the public.
    "When the secrecy provisions were being debated before the Senate Judiciary Committee, DOJ argued that the secrecy provisions were needed to prevent the potential defendant from being tipped off that there might be a parallel criminal investigation. 1986 U.S.C.C.A.N. at 5288-89. DOJ stated that the FCA civil suit 'might overlap with allegations already under criminal investigation.' Id. at 5289 (emphasis added). Thus, neither DOJ nor any other entity expected that every FCA case would be accompanied by a parallel criminal investigation. Even if an ongoing criminal investigation alone was a sufficient governmental interest, not every case should be subjected to secrecy. ...
    "The mandatory secrecy provision requires the Clerk of the Court to seal the complaint upon its filing. Neither the relator nor the government is required to show that there is a compelling need to deny the public access to this information. The mandatory secrecy provision prohibits a court from making an individualized, case-by-case determination as to whether the sealing of the complaint serves a compelling interest and is narrowly tailored.
"During this time, the public has no knowledge that a civil action has been filed in federal court alleging that the U.S. government has been defrauded. Nor does the public have any other means of acquiring this knowledge or accessing information relating to these cases because the relator is gagged from speaking about the case. ...
    "The secrecy extension provision does not define "good cause," nor is the term defined elsewhere in the FCA statute. 31 U.S.C. § 373O(b)(3). The secrecy extension provision does not require that the relator or the government demonstrate a compelling need for the action to remain inaccessible to the public, or that keeping the complaint under seal is narrowly tailored to that need. The secrecy extension provision therefore permits the complaint to remain under seal for an indefinite period of time."
    As a result, the FCA secrecy provisions hide allegations of fraud from the public, including more than 60 allegations of fraud in the Iraq war, the complaint states. Many of these allegations are against politically connected giants such as Halliburton and Kellogg, Brown & Root.
    "According to DOJ, as of July 2007, there were approximately 1,000 qui tarn cases that were under seal pending the government's decision on whether to intervene. The average length of time between when an FCA case is filed and when the government notifies the court of its election to intervene is approximately 13 months. FCA cases, however, are usually sealed for much longer period of time than 13 months. Cases typically remain sealed for 2 to 3 years, and have been sealed for as long as 9 years.
    "The FCA secrecy scheme has hidden from public purview allegations of military contractor fraud in the Iraq War. (See, e.g., David Rose, The People vs. the Profiteers, Vanity Fair November 2007, asserting that military contractor fraud is rampant but unknown to the public at large because the allegations remain under seal).
    "Although the exact number of Iraq contractor fraud cases under seal remains unknown, there is evidence that more than a handful of these cases exist. Stuart Bowen, the Special Inspector General for Iraqi reconstruction, reports on Iraq reconstruction issues to the Pentagon and State Department. In 2006, Mr. Bowen reported that he knew of 79 sealed FCA Iraq contractor fraud cases, some of which have multiple plaintiffs. Id. As of August 2007, allegedly 66 remained under seal."


Hollywood Firm Dreier Trying to Sever Ties
Headline Legal News | 2009/01/07 17:07
A top Hollywood law firm is quietly but doggedly trying to sever ties with its New York owner in the wake of his arrest on financial fraud charges.

Santa Monica-based Dreier Stein, the 40-attorney outpost of Dreier Llp. and home to well-known entertainment litigator Stanton "Larry" Stein, spent the holidays in expedited meetings with potential new merger partners on both coasts.

The goal, Stein said, is to split from firm principal and accused swindler Marc Dreier before the end of January.

"We're listening to offers," said Stein, who reps such industry clients as Lionsgate, Jennifer Love Hewitt and David Duchovny. "We've done nothing wrong, and we need to get out from under the burden of Dreier."

Dreier, who opened the West Coast outpost of his 250-lawyer firm in January 2007 via a pricey deal with Stein's entertainment litigation and corporate boutique, has been held in a Manhattan jail since early December on charges of bilking some of New York's top investors to the tune of $380 million.

Among other colorful and bizarre tactics, Dreier is accused of impersonating lawyers and hawking fake promissory notes to hedge funds.

The arrest has plunged the once high-flying Dreier firm into bankruptcy and put some of Hollywood's most prolific lawyers in play.

Stein's group of 20 talent-side litigators, which includes Michael Plonsker, Yakub Hazzard and Mark Passin, has handled recent cases for Marvel Entertainment and Eva Longoria and repped Rob Lowe in his battle against a former nanny.

In December, the firm, whose full name is Dreier Stein Kahan Browne Woods George, went to trial against AMPAS on behalf of the estate of Mary Pickford over the effort by Pickford's heirs to auction off her Oscar for 1929's "Coquette."

Stein said he and his partners are cooperating with the court-ordered receiver that is collecting the firm's income and approving its expenses while he scrambles to find another home. He would not confirm the names of suitors, but top contenders include Los Angeles' Liner Yankelevitz Sunshine & Regenstreif, which itself boasts a strong entertainment practice, as well as New York-based Mintz Levin Cohn Ferris Glovsky & Popeo, Washington-based Buchanan Ingersoll & Rooney and international firms Troutman Sanders and Kramer Levin Naftalis & Frankel.


Holocaust Survivors' Class Action Dismissed
Headline Legal News | 2009/01/05 17:01
A federal judge dismissed Holocaust survivors' class-action claim that the Republic of France and its railroad company stole thousands of Jews' property as they were being deported to Nazi-run concentration camps. "(T)he court concludes that the bounds of its jurisdiction are not coterminous with the moral force of Plaintiffs' claims,' U.S. District Judge Richard Sullivan wrote.      Judge Sullivan ruled: "(T)he Court finds that it lacks subject matter jurisdiction to adjudicate Plaintiffs' claims under the Foreign Sovereign Immunities Act ... and that, even if jurisdiction were proper, the case presents serious justiciability issues that make abstention appropriate. Accordingly, Defendants' motions to dismiss are granted."
    Suing for the class of Holocaust deportees and their heirs, Lead plaintiff Mathilde Freund sued The Republic of France, the Société Nationale des Chemins de Fer Français, and the Caisses des Dépôts et Consignations.
    Plaintiffs' lead counsel was Harriet Tamen. France's lead counsel was Jeremy Goldman Epstein with Shearman & Sterling.


Judge gives $65M to USS Pueblo Captives
Legal Topics | 2009/01/02 17:41
A federal judge in Washington, D.C., ordered North Korea to pay $65.85 million to two crew members of the USS Pueblo, the commander's widow and a civilian oceanographer for kidnapping and torturing the ship's crew in 1968.
    In a sordid 33-page ruling, U.S. District Judge Henry Kennedy describes how the crew members were systematically beaten and tortured during 11 months in captivity.
    William Thomas Massie, Donald Raymond McClarren, Dunnie Richard Tuck and the estate of Lloyd Bucher, the ship's commander, sued North Korea for damages, alleging egregious violations of human rights.
    The USS Pueblo was captured in the Sea of Japan, about 25 miles off the coast of North Korea, while on an electronic surveillance mission on Jan. 23, 1968.
    The crew was dragged off the ship while bound and blindfolded, and led through a crowd of hostile and unruly North Koreans, who shouted insults and spat at them. The guards also kicked their legs and administered "karate chops," the ruling states.
    The captives were then transported to Pyongyang, where they were taken to a "prison" nicknamed the "Barn" on the outskirts of town. There, they were separated into rooms of four prisoners each. The conditions were cold and dark, and there was no running water. The prison was infested with rats and bed begs, one of which bit Massie, causing him to develop a severe infection that had to be lanced by a North Korean doctor without the use of an anesthetic. Bucher lost about 50 pounds, Massie lost 51 and Tucker lost 37.
    For almost a year, North Korean officers beat, starved, tortured and intimidated the men, in order to coerce them into confessing that they were spies for South Korea. The captors tried to get Bucher to sign a typed statement that he was a CIA spy trying to incite a war.
    Though Bucher initially refused to sign, he eventually capitulated after his captors threatened to shoot his crew, in his presence, one by one.
    While the men were being held hostage, the North Koreans tried to extract a public apology from the U.S. government. The hostages were forced to participate in staged press conferences and propaganda films, which they sabotaged by inserting corny, archaic language into the prepared statements and sticking up their middle fingers in pictures and videos. They told the North Koreans that the middle finger gesture was the "Hawaiian Good Luck Sign." When the captors discovered the true meaning of the obscene gesture, they ramped up the beatings, launching a campaign of torture dubbed "Hell Week."
    Judge Kennedy said countries that sponsor terrorism forfeit their sovereign immunity. And although the plaintiffs were released 25 years before Congress enacted the Anti-Terrorism and Effective Death Penalty of 1996, Kennedy said Congress intended it to apply retroactively.
    Because North Korea never responded to the damage claim, Kennedy entered judgment for the plaintiffs. He awarded Massie, McClarren and Tuck $16.7 million each, while Bucher's estate recieved $14.3 million. Bucher's widow, Rose, won $1.25 million.
    "The effects of the outrageous conduct of North Korea will be felt by Massie, Tuck, McClarren and Rose Bucher for the rest of their lives," Kennedy concluded.


Relatives mourn family slain in Santa shootings
Headline Legal News | 2008/12/29 17:24
Joseph and Alicia Ortega came from Mexico and raised a large, loving family supported by the metal painting business they started in Southern California.

The remaining members of that family now are in mourning, after a Christmas Eve attack on the Ortegas' home by the vengeful ex-husband of one of their daughters, Sylvia Pardo.

Bruce Pardo donned a Santa Claus suit and killed nine members of the Ortega family during the Christmas party where the close-knit family gathered each year, before spraying the home with racing fuel that set it on fire. Pardo later killed himself.

"They really were a great family," said Jose Castillo, Sylvia Pardo's brother-in-law from an earlier marriage, who came to pay his respects Sunday at the end of a quiet cul-de-sac where the Ortegas' two-story home once stood. "They used to be together all the time."

Joseph Ortega, 80, and Alicia, 70, had retired about 10 years ago from their business painting metal furniture and other items in nearby El Monte.

The couple immigrated to the United States shortly after their marriage 53 years ago in the Mexican city of Torreon, that city's newspaper, El Siglo de Torreon, reported Saturday.

The family is well-known in the city, where Alicia's sisters are prominent businesswomen, the newspaper's editorial director Javier Garza told the Los Angeles Times.

Sylvia Pardo, 43, had been living at her parents' home since her divorce from Bruce Pardo, a 45-year-old electrical engineer, about a year ago, Castillo said.

Her earlier marriage to Jose Castillo's brother, Sabino Castillo, ended with Sabino's death in a traffic accident about 20 years ago, when she was pregnant with their youngest of two children.

Both children, a 21-year-old daughter and 20-year-old son, had escaped unharmed from the party where Bruce Pardo opened fire.



Court: No obligation for company to give teen drug
Legal Topics | 2008/12/17 18:20
A pharmaceutical company does not have to provide an experimental drug to a Minnesota teen who is terminally ill with a rare form of muscular dystrophy, a federal appeals court ruled Tuesday in reversing a lower court decision.

The ruling by the U.S. Court of Appeals for the Third Circuit in Philadelphia was a blow to 17-year-old Jacob Gunvalson, who suffers from Duchenne muscular dystrophy.

The court ruled that U.S. District Judge William J. Martini in Newark erred in his August ruling that PTC Therapeutics of South Plainfield, N.J., must provide the drug to Gunvalson. That decision had been stayed pending the company's appeal.

"I just think it's really unfair that these drug companies get all these benefits from the federal government," said Jacob's mother, Cheri Gunvalson. "And then they're allowing boys to fall through the cracks and die." She said she would not give up her fight but didn't know what the next step would be.

In its ruling, the appeals court said it was "sympathetic to the plight of Jacob and his family," but that the lower court "abused its discretion" in ordering PTC to supply the drug to Gunvalson.

The Gunvalsons, who live in Gonvick, Minn., maintained that the company led them to believe that Jacob could participate in a clinical trial of the drug, which is being investigated as a possible treatment — and that the company then went back on its word.



Internet gambling tycoon gives up $300M in plea
Headline Legal News | 2008/12/17 18:19
A co-founder of an Internet gambling company and one of the world's richest people pleaded guilty Tuesday to violating the federal wire act and agreed to forfeit $300 million as part of a cooperation deal.

A smiling Anurag Dikshit, of the British colony of Gibraltar, entered the plea in U.S. District Court in Manhattan to charges that he used the Internet to transmit interstate and foreign wagering information. The charge carries a potential prison term of up to two years.

The 37-year-old citizen of India is the co-founder of PartyGaming, a Gibraltar online gambling company that offered casino and poker games and catered to a U.S. audience.

Dikshit signed a cooperation agreement and prosecutors indicated they may eventually submit a letter to the judge asking for leniency.

Dikshit and defense lawyer Mark Pomerantz declined to comment.

Prosecutors said in a release that Dikshit developed a proprietary software platform and directed the company's computer operations from 1998 through October 2006, when he also was PartyGaming's principal shareholder.

Bail was set at $15 million, but Dikshit was not required to post any cash or property, prompting Judge Jed S. Rakoff to ask what incentive Dikshit had to attend future court dates.

But prosecutors and Pomerantz agreed that Dikshit had demonstrated his desire to cooperate, in part by already paying $100 million to the U.S. Treasury and pledging to pay another $100 million within three months and the last $100 million installment by Sept. 30.

"Mr. Dikshit decided to come to the United States to enter the plea under his own volition. He's been interviewed in Europe. We believe Mr. Dikshit is dedicated to following through," Pomerantz said.

Forbes magazine estimated Dikshit's worth last year at $1.6 billion, making him the 618th richest person in the world.



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