BMK Among a Team of Lawyers Who Obtained One of the Largest Relator Shares in False Claims Act History
Through a negotiated settlement and a court order, whistleblower Beverly Brown has received a total relator share award of more than $78 million for her efforts in obtaining a $280 million False Claims Act settlement against Celgene Corporation. The $280 million settlement was the second largest recovery ever recorded in a non-intervened case brought under the federal False Claims Act and the relator share award to Brown is also among the largest in history.
The False Claims Act allows whistleblowers – known as “relators” – to bring suit in the name of the government against individuals or entities that caused the fraudulent or improper expenditure of government funds. If the case is successful, the relators receive a portion of the government’s recovery, known as a “relator share.”
Brown, a former Celgene sales representative, filed suit against Celgene under the False Claims Act on behalf of the United States government and 29 states and municipalities in 2010. Brown alleged that Celgene illegally promoted two of its drugs – Thalomid and Revlimid – for uses that were not approved by the FDA and paid illegal kickbacks to healthcare providers and others in an effort to increase the sales of its drugs.
After Brown filed suit, the case remained under seal for four years while the government investigated. In 2014, the government declined to intervene, leaving Brown to either dismiss the case or pursue it on her own. Brown elected to pursue the case on her own.
The case was thereafter one of the most extensively litigated pharmaceutical cases ever brought under the False Claims Act. It involved the review of millions of documents, numerous discovery motions and potentially case-dispositive motions, approximately 40 fact and expert depositions, and dozens of pretrial motions. The parties collectively designated 17 expert witnesses, consisting of some of the nation’s leading experts in the fields of pharmaceutical economics, drug safety and medical ethics.
In early 2017, Brown negotiated the $280 million settlement with Celgene after the trial court denied Celgene’s motion for summary judgment as to Brown’s off-label promotion claims and set the case for trial. Celgene paid most of the settlement amount ($259,269,640) to the federal government, and paid the balance to the state and municipal plaintiffs.
Under the False Claims Act, Brown was entitled to between 25 percent and 30 percent of the settlement amount. After the federal government offered Brown only the statutory minimum 25 percent, she filed a motion with the court asking the judge to determine the relator share percentage. The court ruled that the extensive efforts by Brown and her counsel to bring the case to a successful resolution warranted a 28 percent relator share, resulting in a relator share payment $72,595,499.20. A copy of the court’s opinion is found here.
Brown previously received a negotiated $5,475,551.15 relator share award on the portion of the settlement paid to the state and municipal plaintiffs, making her total relator share award for the Celgene lawsuit $78,071,050.40.
Thomas H. Bienert, Jr., Michael R. Williams, Ariana Seldman Hawbecker, and Ali Matin of Bienert, Miller & Katzman, PLC, represented Brown in the case, in addition to Washington, D.C.-based Guttman, Buschner & Brooks and Richard A. Harpootlian, P.A. of Columbia, South Carolina.
Published Ninth Circuit Win in Federal Criminal Immigration Case
Whitney Z. Bernstein won a published decision in the Ninth Circuit reversing her client’s federal conviction for illegally re-entering the United States after deportation. In the process, she established favorable case law for defending criminal immigration cases.
Whitney’s client immigrated to the United States as a lawful permanent resident (“LPR”) when he was just one month old. He lived legally in the United States for most of life until 2008 when he was stripped of his LPR status and ordered deported from the country by an Immigration Judge at a hearing where he was not even present.
Whitney argued that the 2008 removal order violated her client’s due process rights, and that a later “expedited” removal hearing in 2011 proceeding was also unlawful. Because her client’s immigration hearings were fundamentally unfair, she argued, there was no lawful removal upon which the government could predicate an illegal re-entry conviction.
The Ninth Circuit agreed, explaining that “[a] person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he or she had no meaningful opportunity to contest.” The Court reversed the federal conviction even though Whitney’s client may have been removable on another ground: “[E]ven if the government might have been able to remove him on other grounds through a formal removal proceeding,” the Court reasoned, “his removal on illegitimate grounds is enough to show prejudice.”
Read the published opinion at United States v. Ochoa-Oregel, — F.3d —, 2018 WL 3650801, No. 16-50413 (9th Cir. 2018).
Court Affirms Settlement Providing for $10 Million Allowed Claim in Favor of the FDIC-R
A federal district judge in Santa Ana, California affirmed the rulings of a bankruptcy court allowing a claim of the Federal Deposit Insurance Corporation, as Receiver for American Sterling Bank (the “FDIC-R”) in the amount of $10 million and approving the FDIC-R’s settlement with the debtor, the former executive of a failed bank, providing for the full amount of the FDIC-R’s claim. The appellant, a third-party creditor of the debtor, objected to the settlement and sought to disallow the FDIC-R’s claim before the bankruptcy court. The bankruptcy court, agreeing with and adopting the arguments made by Bienert, Miller & Katzman, allowed the FDIC-R’s claim in the full amount, and approved the settlement. On appeal of the objecting creditor, the district court likewise adopted the analysis and arguments made by Bienert, Miller & Katzman in their entirety. The district court affirmed the bankruptcy court’s approval of the $10 million settlement and allowance of the FDIC-R’s claim in the debtor’s bankruptcy case.
Court Strikes Affirmative Defenses Alleged Against the FDIC-R
On a motion brought by Bienert, Miller & Katzman, PLC, a federal district judge in Detroit, Michigan struck several key affirmative defenses alleged against the Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank (“FDIC-R”). Citing to and adopting several of the arguments advanced by Bienert, Miller & Katzman, the Court held that the defendant’s defenses based on the FDIC-R’s alleged lack of standing to litigate and enforce the subject breach of contract claim were improper based on Sixth Circuit precedent. The Court also struck the defendant’s defenses based upon theories of Washington Mutual Bank’s alleged contributory negligence, finding that contributory negligence is not a valid defense in a breach of contract case such as the one at bar.
Steven Jay Katzman and Anne Uyeda of Bienert, Miller & Katzman, PLC represented the FDIC-R in this matter as the FDIC-R’s approved outside counsel. A copy of the order granting the FDIC-R’s motion to strike is found here.
Court Awards Nearly $5 Million to the FDIC-R
On a motion for summary judgment brought by Bienert, Miller & Katzman, PLC, a federal district judge in Miami, Florida ordered Defendant Attorneys’ Title Insurance Fund, Inc. (“ATIF”) to pay nearly $5 million to the Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank (“FDIC-R”) for ATIF’s failure to reimburse funds that ATIF’s closing agents had misappropriated from Washington Mutual Bank (“WaMu”) in connection with several residential real estate transactions in southern Florida. Steven Jay Katzman, Michael R. Williams, and Anne Uyeda of Bienert, Miller & Katzman, PLC represented the FDIC-R in this matter as the FDIC-R’s approved outside counsel.
The FDIC-R alleged that seven closing agents who issued title insurance policies on behalf of ATIF had falsified loan, settlement, and accounting documents and failed to comply with WaMu’s closing instructions with respect to 14 real estate transactions. The Court ruled that the FDIC-R was entitled to summary judgment on 6 of the 14 transactions and ordered ATIF to pay the award of $5 million plus prejudgment in interest to the FDIC-R. A copy of the Court’s order is found here.
Court Rules Eighteen Felony Counts Including Conspiracy and Grand Theft are Barred by the Statute of Limitations
On July 28, 2014, Jim D. Riddet of Bienert, Miller & Katzman, PLC obtained a dismissal of all eighteen felony counts including two counts of conspiracy and 16 counts of grand theft. The client was indicted by a grand jury over 3 years ago, but Mr. Riddet was able to obtain a dismissal of that indictment. Thereafter, the District Attorney filed a felony complaint alleging additional charges. After a two-day hearing, the court accepted Mr. Riddet’s argument that all counts were barred by the Statute of Limitations. Two co-defendants had entered pleas of guilty to the charges, and, as a result of the dismissal of Mr. Riddet’s client, their charges are expected to be dismissed as well. No further charges are anticipated.
Court Dismisses Eight of Thirteen Felony Charges Against Former Public Executive
Following a week-long preliminary hearing in which Jim D. Riddet of Bienert, Miller & Katzman, PLC represented a former Orange County Public Works Executive, the court dismissed eight of thirteen felony counts against his client, ruling that there was insufficient evidence to require the defendant to stand trial. Over the course of the preliminary hearing, Mr. Riddet was able to establish through cross examination of prosecution witnesses that many of the charges were not even supported by probable cause.
After testimony concluded, Mr. Riddet argued to the court that in 47 years of defending criminal cases “I have never seen a case which is so blatantly over filed.” He also argued that one of the deputy district attorneys prosecuting the case committed misconduct when she told potential witnesses that the prosecutor believed the defendant was guilty. At the conclusion of the arguments, Superior Court Judge Kazaharu Makino dismissed 8 of the 13 felony counts. The judge also agreed with Mr. Riddet that the prosecutor’s comments to a witness were improper. Following the ruling, Mr. Riddet stated that the court’s findings supported his and his client’s long time contention that the many of the charges should never have been filed.
Federal District Court Orders the United States Secret Service to Return Over One Million in Embezzled Tax Refunds to a Federal Bankruptcy Trustee
On a motion brought by Bienert, Miller & Katzman, PLC, a federal district court judge in San Diego, California, ordered the return of over $1 million in embezzled tax refunds belonging to the bankruptcy estate of SLE Metal, Inc., which had been seized by the United States Secret Service in March 2010. The Secret Service held the funds for over three years, despite several requests for return of the funds by the federal bankruptcy Trustee of the company. The Trustee then obtained a court order retaining Bienert, Miller & Katzman, PLC as her Special Counsel to pursue the recovery of the seized funds. The firm was selected by the Trustee because of Steven Jay Katzman’s prior experience, both as coordinator of the Bankruptcy Fraud Task Force for the U.S. Attorney’s Office in Los Angeles and as the United States Trustee for five Judicial Districts, including all of Southern California, Hawaii, Guam and the Mariana Islands.
Taking the position that the Trustee had an interest in the embezzled funds superior to any claim of the government, Katzman and Anne Uyeda of the firm utilized a provision of the federal rules of criminal procedure to secure the return of the funds. As a result, in fewer than four months after the order approving their employment, Bienert, Miller & Katzman, PLC were able to obtain an order for turnover of the funds to the Trustee. “The case presented a novel issue in a very common scenario, where both the interests of a federal criminal proceeding and a bankruptcy case overlap. We are happy that we were able to achieve a successful result for our client by securing the return of the embezzled funds to the Trustee. We are also thankful for the support of the U.S. Attorney’s Office and Wells Fargo Bank, who both cooperated in response to our request for the return of the funds to the Trustee,” said Steve Katzman, partner with Bienert, Miller, & Katzman, PLC.
Bienert Miller & Katzman, PLC Selected as Counsel for the Official Retiree Committee in the City of San Bernardino Chapter 9 Bankruptcy Matter
The Committee serves as a representative and fiduciary to the interests of the approximately 2,000 retired employees (the “Retirees”) in the City’s bankruptcy. Bienert, Miller & Katzman has zealously represented the interests of the Retirees, negotiating with the City to ensure that the Committee has a represented voice in the process, seeking clarification with the Court to confirm that a claims bar deadline is not imposed prematurely on Retirees and substantively participating in the Court ordered mediation sessions, dialoguing with the City, California Public Employees’ Retirement System (“CalPERS”), labor unions and other parties in interest to ensure that the restructuring process is fair, transparent and protects the Retirees.
The stakes for the Retirees are significant as the City has taken the unprecedented step of deferring millions of dollars in CalPERS obligations after the City’s filing but before the Court ordered that the City’s bankruptcy filing could proceed. However, Bienert, Miller & Katzman is well suited for serving the Committee’s interests, with Steve Jay Katzman’s prior service as both United States Trustee for five Judicial Districts and work as coordinator of the Bankruptcy Fraud Task Force for the United States Attorney in the Central District of California.
Lesser Sentence for Business Owner, Struggling to Keep Business Afloat
A federal judge in Orange County, California, acknowledged the pressure of trying to maintain a struggling business during the economic recession of 2008 as a factor to consider in imposing sentence in a business fraud case. On February 25, 2013, U.S. District Judge Cormac J. Carney sentenced Cheryl Fu to 36 months based on her guilty plea to bank fraud. Government attorneys had argued for a higher sentence of 46 months in prison. Counsel for creditors of Fu’s failed business had sought a far greater sentence.
Defense counsel, Steven Jay Katzman and Ariana Seldman Hawbecker of Bienert, Miller and Katzman, argued that a lesser sentence was warranted because the crime was not the result of greed or evil motive, but was born out of difficult financial circumstances. The Court agreed, finding that “…this was not a fraud from the outset” but “…was a very successful business for years. It came on difficult financial times and unfortunately, and tragically, Ms. Fu gave in to the economic pressure and lied.” United States v. Cheri Fu, Case No. 11-00059-CJC, United States District Court, Central District of California, Santa Ana Division.
Court Denies Trustee’s Attempt to Deprive Fraud Victim of Funds Seized From Defendant
Sixteen years after Dr. Ronald Cunning obtained a multi-million dollar judgment against Lloyd Rucker, a federal court once again ruled the victim can take steps towards collecting over $1million that was seized from Rucker 8 years ago. This victory is just the latest hurdle of many that Dr. Cunning and his tenacious team of trial lawyers led by Thomas H. Bienert, Jr. at Bienert, Miller & Katzman, PLC have overcome. After being defrauded in 1994, Dr. Cunning obtained a verdict for $3.2 million in 1997, located and seized over $1 million from Rucker in 2005, obtained a court order after a trial in 2006 that he could collect the money, and then successfully rebuffed Rucker’s appeal of that order in 2009. But before he could finally collect the money in 2009, a bankruptcy trustee sued Cunning for the same proceeds, claiming that Cunning did not properly serve Rucker with legal documents in 2005 and, consequently, the trustee could take the money to pay creditors of Rucker’s bankruptcy. The Trustee took this position despite the fact that Dr. Cunning was by far the largest creditor in the bankruptcy, being owed 90% of the money owed by Rucker to creditors.
Dr. Cunning expressed gratitude over the latest ruling of the court and the efforts of his trial team. Dr. Cunning noted that “throughout the years, I have been very thankful for, and appreciative of, the talent and hard work of my trial counsel. It has been a long haul for all of us,” and that he is “delighted that we have achieved some measure of justice.”
Marc S. Kirschner, as Trustee of the Yellowstone Club Liquidating Trust v. Timothy Blixseth
Representing the trustee of the liquidating trust formed under the bankruptcy reorganization plan of the Yellowstone Mountain Club, LLC, Steven Jay Katzman and Tony Bisconti, along with co-counsel in Texas and West Virginia, successfully defended against a counterclaim filed by the former president and CEO of the club alleging breach of contract, conspiracy, and RICO violations, and seeking six billion dollars in damages. The court ordered the dismissal of the counterclaim, with prejudice, along with denial of a motion to amend the counterclaim. Additionally, the court granted a motion for sanctions filed on behalf of our client, awarding fees and costs incurred in defending against the vexatious counterclaim. In awarding fees, the court held that
“[E]xtensive strategy, review, analysis, and communications performed by both BMK and [co-counsel] B&G were substantive in nature and necessary, addressing complex substantive and procedural issues arising in this case due to several factors, including but not limited to: the nature of the specious claims asserted by Mr. Blixseth; the preexisting litigation across several forums; and complex legal questions of intersecting state, federal, and bankruptcy law.”
Spear v. Cyprus
Thomas H. Bienert, Jr. and Luis A. Feldstein secured the dismissal with prejudice of a federal civil action in the U.S. District Court for the Central District of California. The complaint made baseless claims that BMK’s client had defrauded mortgage lenders through the use of straw buyers to purchase properties. After the plaintiff’s initial complaint was dismissed for failure to state a claim and on other grounds, the plaintiff filed two amended complaints that also were dismissed on based on the arguments advanced by BMK and co-counsel.
United States v. Sou
Thomas H. Bienert, Jr. and Anne Uyeda scored a significant victory for their client in the human trafficking prosecution of prominent Hawaii farm owners Alec and Mike Sou. After one week of trial in the United States District Court for the District of Hawaii, the government moved to dismiss the indictment after determining it could not meet its burden of proof.
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Diversified Trust Deed Fund v. Stanley E. Fulton
Litigating a case of first impression on interpretation of reasonably equivalent value under the Nevada Uniform Fraudulent Transfer Act in cases alleging actual fraud, Steven Jay Katzman and Luis Feldstein, along with Nevada co-counsel, successfully defended a lawsuit brought by the liquidating agent and manager of a mortgage company against a prominent Las Vegas resident, accused of receiving a fraudulent conveyance and receipt of stolen property. Summary Judgment was successively obtained against the Fund in favor of our client before the Bankruptcy Court and was affirmed by the District Court, paving the way to a successful resolution and recognition by the Plaintiff that our client did not engage in any wrongful conduct.
Read the Bankruptcy Court and District Court Opinions here →
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In re South Coast Oil Corporation
Steven Jay Katzman and Anne Uyeda, representing a prominent Oil & Gas Company and two of its principals, successfully obtained the discharge of an Order to Show Cause for the alleged violation of a Temporary Restraining Order.
Read the Bankruptcy Court Statement of Decision here →
Girgis v. Gonzales
Kenneth M. Miller, working pro bono through the Ninth Circuit mediation program, was able to have his client’s deportation vacated and removal proceedings reopened so his client (an asylum seeker) could seek adjustment of status before DHS. In April 2012, Mr. Girgis became a U.S. citizen.
Case No.04-73631 (9th Cir. 2007)
Curran v. Curran
Steven Jay Katzman and Ariana Seldman Hawbecker successfully obtained a non-dischargeable judgment related to misrepresentations between former spouses related to acquisition and sale of residence.
See the Judgment here →
United States v. Sanchez
Kenneth M. Miller successfully argued the wrongful denial of defendant’s new trial motion (based on evidence that the government informant committed perjury during trial). The Ninth Circuit reversed and remanded for further proceedings. On remand, without an evidentiary hearing, the District Court again denied the new trial motion. Mr. Miller appealed the second denial, and the Ninth Circuit reversed and remanded with instructions for the District Court to hold an evidentiary hearing to determine the credibility of the new evidence. After further discovery and investigation, Mr. Miller convinced the government to stipulate to a new trial, then settled the case, reducing his client’s life sentence to 12 years.
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United States v. Sarshad
Thomas H. Bienert, Jr., Luis A. Feldstein, and Christi McGowan scored a major victory by securing a not-guilty verdict on all charges against their client (Sarshad) after a seven-week trial in the United States District Court for the Central District of California. The 75-count indictment alleged Sarshad and three other doctors, had billed Medicare for respiratory treatments that were never administered or were done so in violation of Medicare regulations. The 12-member jury unanimously acquitted Sarshad, deciding that the government failed to prove Sarshad had any knowledge of the questionable billing practices.
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In re Parsley
Steven Jay Katzman, co-lead counsel for the United States Trustee Program, was recognized for his legal work by the United States Bankruptcy Court in a published decision: “The Court would also note that the discovery conducted by the UST, and its examination of witnesses at the show cause hearings, has been very thorough and skillful…The Court greatly respects the UST’s work in this case.”
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United States v. Lazar
Thomas H. Bienert, Jr. won a favorable result for his client, Lazar, who pled guilty in the Milberg Weiss case in which the government alleged a kickback scheme involving class-action lawsuits.
Rinella v. Stabile
After a two week trial, a jury awarded our client $1.7 million verdict in legal malpractice case.
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In Re San Diego Diocese Bankruptcy
Steven Jay Katzman extensively examined Bishop Robert Brom of the San Diego Diocese in relation the Diocese bankruptcy, assets and liabilities. Read about the examination at:
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United States v. Lenz, et al.
Thomas H. Bienert, Jr. and Christi McGowan secured a mistrial in the Peregrine Systems financial-fraud trial after jury deadlocked over all counts for all four defendants. Representing a former Peregrine Systems executive, Mr. Bienert successfully argued that federal prosecutors failed to show that his client, Gary Lenz, intentionally joined in the corporate conspiracy to defraud investors.
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In Re: Lloyd Myles Rucker
After a 4 day evidentiary hearing, the Court Disallowed Retirement Accounts To Shield Assets From Collection and concluded that the Pension Plan and 40l(k) Plans were not set up and funded primarily for retirement purposes, but rather to improperly shield and hide assets to frustrate Movant’s efforts to collect on the Judgment. Read Judge John E. Ryan’s decision.
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Gnesda v. UPS
After a 3 week trial, an LA jury awarded our client a $21 million verdict in wrongful termination case.
United States v. Nielson/Meyers
Based on the efforts of Thomas H. Bienert, Jr. and Christi McGowan, District Court reconsidered and then lowered criminal restitution order from $4 million to $490,000.
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Caliendo v. Warden
Kenneth M. Miller secured a reversal for three-strike defendant serving life sentence. The Ninth Circuit concluded “that Caliendo must be released or granted a new trial.” Habeas relief was granted and Caliendo was released.
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United States v. Woods
Kenneth M. Miller successfully argued that the District Court erroneously applied two sentencing enhancements. The Ninth Circuit vacated Ms. Woods’ sentence and remanded to the District Court where her sentence was reduced from 87 to 51 months.
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United States v. Moore
Kenneth M. Miller succeeded in having client’s sentence reversed and remanded. Mr. Miller was ultimately able to reduce client’s sentence from 168 to 120 months.
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Nelson v. Ratelle
Kenneth M. Miller appealed the District Court’s dismissal of habeas petition as time barred. The Ninth Circuit reversed and ordered the District Court to proceed with Nelson’s petition.
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Thomas v. Roe
Denial of habeas petition reversed and remanded.
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McCloskey, et al. v. City of Inglewood, et al.
Appeal of denial race discrimination claim dismissed for lack of jurisdiction.
Case No. 00-55973 (9th Cir. 2000)
United States v. Anderson
Kenneth M. Miller secured a reversal of his client’s manslaughter conviction. The Ninth Circuit found ”the omission of an involuntary manslaughter instruction ‘seriously affected the fairness, integrity, or public reputation’ of Miranda and Anderson’s trial.”
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United States v. Vargas-Lopez
Conviction and sentence vacated and remanded.
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United States v. McKinney
Sentence vacated and remanded for the District Court to award a two-level reduction in his base offense level for acceptance of responsibility.
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