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The Wreck of the Andrea Doria and the Biotronik Anti-Kickback Enforcement Action

We have not had a This Day in History opening for the FCPA Compliance and Ethics Blog for some time. So not only is one long overdue but a shipwreck which occurred some 66 years ago makes a great opening for today’s start of a multi-part blog post series on a Federal Anti-Kickback  enforcement action which was announced last week, involving the Oregon based medical device manufacturer Biotronik Inc. (Biotronik).

The shipwreck of course was the catastrophe involving the Italian passenger liner the Andrea Doria and the Swedish passenger liner, the Stockholm off the coast of New York on this date in 1956. According to This Day in History, at approximately, 10:45 pm, the Stockholm showed up on the Andrea Doria’s radar screens, at a distance of about 17 nautical miles. Next Andrea Doria showed up on the Stockholm’s radar, at 12 miles away. The Andrea Doria Captain then “exacerbated a dangerous situation by making a turn to port for an unconventional starboard-to-starboard passing, which he wrongly thought the other ship was attempting.” Third Officer Johan-Ernst Bogislaus Carstens, commanding the bridge of the Stockholm, then made a conventional turn to starboard. Andrea Doria Captain Calami realized he was on a collision course with the Stockholm and turned hard to the left, hoping to race past the bow of the Swedish ship but it was too late. Five were killed on the Stockholm and 46 persons on the Andrea Doria died but over 1,600 were rescued. It was one of the final great nautical disasters involving the collision of passenger ships.

According to the Department of Justice (DOJ) Press Release, “the Federal Anti-Kickback Statute prohibits offering or paying anything of value to induce referrals of items or services covered by Medicare and other federally funded programs. The statute is intended to ensure that medical providers’ judgments are not compromised by improper financial incentives.” Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division, said, “Paying kickbacks to doctors to influence their selection of medical devices undermines the integrity of federal healthcare programs. When medical devices are used in surgical procedures, patients deserve to know that their device was selected based on quality of care considerations and not on improper payments from manufacturers.”

Biotronik is a company which manufactures and sells cardiac rhythm management (CRM) devices, including pacemakers, defibrillators, and cardiac resynchronization therapy (CRT) devices throughout the United States. The company engaged in bribery and corruption inside the US rather than outside of the US as we see in cases involving the Foreign Corrupt Practices Act (FCPA). The Press Release claims that the company engaged in a “kickback scheme to pay certain favored physicians to induce and reward their use of Biotronik’s pacemakers, defibrillators and other cardiac devices. In particular, Biotronik allegedly abused a new employee training program by paying physicians for an excessive number of trainings and, in some cases, for training events that either never occurred or were of little or no value to trainees.”

Biotronik was on actual knowledge that these payments were illegal as the corporate compliance function “warned that salespeople had too much influence in selecting physicians to conduct new employee training and that the training payments were being over-utilized.” The Press Release also noted, “the settlement also resolves allegations that Biotronik violated the Anti-Kickback Statute when it paid for physicians’ holiday parties, winery tours, lavish meals with no legitimate business purpose and international business class airfare and honoraria in exchange for making brief appearances at international conferences.”

Interestingly, this matter involved two whistleblowers. The civil settlement included the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act (FCA),  which, under those provisions, a private party can file an action on behalf of the United States and receive a portion of any recovery. The whistleblowers were Jeffrey Bell and Andrew Schmid, both of whom had been employed as independent sales representatives for Biotronik. They brought suit against the company, alleging, as stated in the Settlement Agreement, that Biotronik “knowingly caused the submission of false claims for payment to federal healthcare programs by providing remuneration to physicians to induce them to use Biotronik’s CRM devices in violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b). The United States intervened in the Civil Action on June 21, 2021.” Bell and Schmid received approximately $2.1 million as their share of the recovery in this case.

Biotronik agreed to pay $12.95 million to resolve these allegations “by causing the submission of false claims to Medicare and Medicaid by paying kickbacks to physicians to induce their use of Biotronik’s implantable cardiac devices, such as pacemakers and defibrillators.” There were multiple US enforcement authorities involved in this case. The Press Release noted, “the resolution obtained in this matter was the result of a coordinated effort between the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section and the U.S. Attorney’s Office for the Central District of California. HHS-OIG assisted in the investigation.”

Join us tomorrow when we consider the bribery schemes allegedly used by Biotronik and the lessons learned for the compliance professional.

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Daily Compliance News

June 25, 2022 the State Capture Edition


In today’s edition of Daily Compliance News:

  • FCA fines Ghana Bank for poor AML controls. (WSJ)
  • Law professors can detail prosecutorial misconduct. (Reuters)
  • Nike leaves Russia. (BBC)
  • State capture in South Africa. (WaPo)
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Daily Compliance News

January 26, 2022 the Post-Termination Retaliation Edition


In today’s edition of Daily Compliance News:

  • State AGs accuse Google of tracking users. (NYT)
  • DOJ refocusing on anti-trust. (DOJ Press Release)
  • SCt turns down case on post-termination retaliation. (Law360)
  • Amazon employees join the Great Resignation. (Bloomberg)
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Blog

Credit Suisse and Tuna Bonds: Part 1 – Introduction

Last week, Credit Suisse Group AG settled a massive fraud action involving a non-existent Mozambiquan tuna boat fleet. While Texans have long had a fond place in their hearts for our convicted con man Billy Sol Estes, who defrauded the US federal government out of millions with his tales of nonexistent fertilizer tanks, faked mortgages and bogus cotton-acreage allotments; Billy Sol Estes was a piker compared to the bankers at Credit Suisse, the bank itself and the thoroughly corrupt politician running the country of Mozambique in creating and selling a loan package eventually totaling some $850 million for tuna boats that never existed. Over the next few blogs, I will be looking at the Credit Suisse enforcement action which involved the Department of Justice (DOJ), Securities and Exchange Commission (SEC) and UK Financial Conduct Authority (FCA).
US Attorney Breon Peace for the Eastern District of New York, noted, in the DOJ Press Release, “Over the course of several years, Credit Suisse, through its subsidiary in the United Kingdom, engaged in a global criminal conspiracy to defraud investors, including investors in the United States, by failing to disclose material information to investors, including millions of dollars in kickbacks to its bankers and a high risk of corruption, in connection with an $850 million fraudulent loan to a Mozambique state-owned entity.” According to Anita B. Bandy, Associate Director of the SEC’s Division of Enforcement, speaking in the SEC Press Release, “Credit Suisse provided investors with incomplete and misleading disclosures despite being uniquely positioned to understand the full extent of Mozambique’s mounting debt and serious risk of default based on its prior lending arrangements. Fraud was also a consequence of the bank’s significant lapses in internal accounting controls and repeated failure to respond to corruption risks.”
This enforcement action scorched the tattered reputation of the Swiss banking giant. Three Credit Suisse employees had previously pled guilty to receiving kickbacks as a part of the fraud. The FCA noted in its Press Release, “The contractor secretly paid significant kickbacks, estimated at over US$50 million, to members of Credit Suisse’s deal team, including two Managing Directors, in order to secure the loans at more favourable terms. While those Credit Suisse employees took steps to deliberately conceal the kickbacks, warning signs of potential corruption should have been clear to Credit Suisse’s control functions and senior committees. Time and again there was insufficient challenge within Credit Suisse, or scrutiny and inquiry in the face of important risk factors and warnings. The Republic of Mozambique has subsequently claimed that the minimum total of bribes paid in respect of the two loans is around US$137 million.”
The overall settlement was for a total of $475 million paid to the DOJ, SEC and FCA and an additional forgiveness of $200 million in debt held by Credit Suisse against the country of Mozambique, which the FCA took into account in determining its financial penalty. The Bank also agreed to a methodology to calculate proximate fraud loss for victims of its criminal conduct; the amount of restitution payable to victims will be determined at a future proceeding. The DOJ Press Release also noted that “Switzerland’s Financial Market Supervisory Authority (FINMA) also engaged in an enforcement action, which includes the appointment of an independent third-party to review the implementation and effectiveness of compliance measures for business conducted in financially weak and high-risk countries, subject to FINMA’s administrative process.” This means the bank will be up for a very high-profile monitorship.
Relatedly, the SEC Order stated the monies paid to the SEC under its profit disgorgement penalty “will be distributed to harmed investors, if feasible through a Fair Fund. The Commission will hold funds paid pursuant to paragraph IV.B [in the Order] in an account at the United States Treasury pending a decision whether the Commission in its discretion will seek to distribute funds. If a distribution is determined feasible and the Commission makes a distribution, upon approval of the distribution final accounting by the Commission, any amounts remaining that are infeasible to return to investors.”
Credit Suisse also agreed to resolve its case with the FCA, qualifying it for a 30% discount in the overall penalty. Without the debt relief and this discount, the FCA would have imposed a significantly larger financial penalty.” However, the conduct of Credit Suisse with the US enforcement agencies was certainly suboptimal. The DOJ noted that the bank failed to voluntarily disclose the conduct to the department, the overall the nature and seriousness of the offense, which included the involvement of bankers up to the Managing Director level. Moreover, “Credit Suisse received only partial credit for its cooperation with the department’s investigation because it significantly delayed producing relevant evidence. Accordingly, the total penalty reflects a 15% reduction off the bottom of the applicable U.S. Sentencing Guidelines range.”
There is a lot to unpack in this matter and I will be doing so in the next several blogs. Moreover, there is much for the compliance practitioner to digest from the case. From some of the basics like due diligence, to internal controls, the lines of defense and an overall risk management protocol, this case has quite a bit to offer. All I can say is that if Billy Sol Estes were around, he sure would be looking at Credit Suisse and its toxic culture as a way to defraud an entire new set of investors out of a pile of money.
Join us tomorrow as we look at due diligence in international deal making.
 

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Compliance Kitchen

Braskem Ex-CEO Sentenced


The DOJ issued a press release of a sentencing of a Brazilian national who is the ex-CEO of Braskem S.A.  The Kitchen stopped by for more detail on this. Meanwhile, the Treasury Department issued a list of countries that may require boycott participation. Tune in for more.

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Compliance Kitchen

FCA Settlement and More Belarus Sanctions


In this episode, the Kitchen explores a recent DOJ settlement with a US government contractor that was brought about through a whistleblower, under the False Claims Act. Next, we take a peek at what is cooking in Switzerland, as the government joins the rest of the world and issues sanctions against Belarus.

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FCPA Compliance Report

Joel Androphy on the Role of the FCA in Fighting Government Procurement Fraud


In the Episode, I am joined by Joel Androphy, co-founder at Berg & Androphy. Joel is well-known literally across the country as a white-collar defense lawyer and plaintiff’s counsel in high-profile False Claims Act litigation. With the ongoing Trump Administration’s bailouts and stimulus packages, there will be great temptations for fraud. There have already been several high-profile cases of companies returning bailout monies to which they were not entitled. In this podcast we consider the role of the FCA in helping the US government fight fraud, waste and abuse.
Some of the highlights include: 

  • Androphy believes the coronavirus bailout will cause great amount of fraud.
  • What is the role of the FCA in fighting government fraud, waste and abuse?
  • Why does Androphy believe that citizens who bring FCA cases are doing civic duty?
  • What are the different types of fraud perpetrated in government contracting?
  • Why is Androphy on a mission to have the federal bailout dollars benefit the American worker and not the American fraudster.

For more information on Joel Androphy, check out the firm website here.

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Daily Compliance News

Daily Compliance News: May 15, 2019-the whistleblower protection edition

In today’s edition of Daily Compliance News:

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Daily Compliance News

Daily Compliance News: April 5, 2019-the I feel very much loved edition

APRIL 5, 2019 BY TOM FOX


In today’s edition of Daily Compliance News:

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FCPA Compliance Report

FCPA Compliance Report-Episode 421, Andrew Beato

In this episode I visit with Andrew Beato from the law firm of Stein Mitchell Beato & Missner LLP. We discuss the firm’s recent Federal Claims Act settlement with Walgreen on behalf of firm client  Marc Baker. Walgreens agreed to pay $60 million to settle allegations that it knowingly overcharged government healthcare plans such as Medicaid for prescription drugs. With this settlement, Walgreens resolved allegations that the company defrauded the U.S. government and 39 states by submitting false and inflated prices for prescription drugs to increase its government reimbursements. The settlement is one of the largest of its kind against a retail pharmacy under the qui tam whistleblower provisions of the False Claims Act. Some of the highlights of the podcast include:

  • The practice at Stein Mitchell Beato & Missner LLP;
  • What are qui tamwhistleblower protection under the FCA;
  • The allegations and resolution of the lawsuit against Walgreens.
  • Why are qui tam actions to powerful?
  • How do qui tam actions benefit the individual, the government and society as a whole?
  • How whistleblowers in such actions are in a private-public partnership to prevent government fraud, waste and abuse?

Resources
Stein Mitchell Beato & Missner LLP website
Andrew Beato LinkedIn profile
Case Name:     United States ex rel. Marc D. Baker v. Walgreen, Co., 12 Civ. 0300 (JPO) (S.D.N.Y.).