Unmasking the Power of the Anti-Fraud Injunction Statute

2024/03/05

I. Introduction Pandemics have been a catalyst for quackery.1 During the Russian Flu, considered the first modern influenza pandemic, newspaper ads plugged balsams, troches, and elixirs to fortify against the “Russian invader.”2 Doctors even promoted drinking brandy and eating oysters as the key to staving off infection.3 One dubious remedy — the carbolic smoke ball — had a notorious legal outcome.4 In November 1891, the Pall Mall Gazette advertised a “carbolic smoke ball” that, when squeezed, sent a puff of acidic smoke up a tube inserted into the user’s nostrils. The ad promised £100 to anyone who contracted influenza after using the product. To show its “sincerity in the matter,” the Carbonic Smoke Ball Company deposited £1,000 with Alliance Bank in London. Enticed, Louisa Carlill bought one of the balls and used it three times daily. After contracting the flu, she demanded to be paid £100. When the Carbonic Smoke Ball Company refused to pay, Carlill sued. At trial, the company argued that its promise to pay £100 was only puffery, not an enforceable contract. The trial and appellate courts rejected the argument. Pointing to the company’s £1,000 deposit, they held the ad was more than “mere puff.” Undeterred, the inventor, Frederick Roe, sought to capitalize on the product’s sudden notoriety. New ads touted, “Many thousand Carbonic Smoke Balls were sold … but only three persons claimed the reward of £100, thus proving conclusively that this invaluable remedy will prevent and cure” diseases.5 Roe’s company also increased its guarantee from £100 to £200, subject to new restrictions. History’s epidemiological record is filled with profiteers like Frederick Roe, who saw public health crises as an opportunity to monetize. The 1918 Spanish Flu, for example, ushered in another wave of questionable remedies: From the Times of London to the Washington Post, page after page was filled with dozens of advertisements for preventive measures and over-the-counter remedies. Read More

Cigna’s Spin on High Court Ruling Ends with $172 Million Settlement

2024/02/02

On June 1, the Supreme Court resolved a long-standing circuit split over how to judge scienter under the False Claims Act’s “knowingly” element. 2 Writing for a unanimous Court in United States ex rel. Schutte v. SuperValu Inc., Justice Thomas held that “[t]he FCA’s scienter element refers to [a defendant’s] knowledge and subjective beliefs—not to what an objectively reasonable person may have known or believed.” SuperValu has already begun to reshape the FCA landscape for the Medicare Advantage sector, which absorbs a staggering $450 billion in annual government payments. Cigna Corp., for example, recently made headlines by settling a trio of FCA claims related to its Medicare Advantage plans for $172 million. As discussed below, the settlement marks a significant turning point in the government’s enforcement efforts against Medicare advantage insurers and providers. Background on SuperValu The whistleblowers in SuperValu had accused two retail pharmacies—SuperValu and Safeway—of “knowingly” reporting to Medicare and Medicaid the full retail price of prescription drugs as their “usual and customary” price, despite providing significant discounts to other payors. The FCA defines “knowingly” to mean acting (1) with actual knowledge of the information; (2) deliberate ignorance of the truth or falsity of the information; or (3) in reckless disregard of the truth or falsity of the information. 3 The FCA does not require proof of specific intent to defraud. Although evidence showed that SuperValu and Safeway had interpreted “usual and customary” to mean discounted prices, the retailers argued that it was “objectively reasonable” to read “usual and customary” to mean full retail prices. The district court agreed and dismissed the FCA suits, holding that the retailers had not acted “knowingly.” The Seventh Circuit affirmed dismissal, finding that the retailers had made “objectively reasonable” interpretations of ambiguous law. In other words, because the claims were objectively reasonable, the retailers’ own subjective beliefs about what constituted “usual and customary” were irrelevant to scienter. Read More

Marc Raspanti and Pamela Coyle Brecht’s WOLEP Presentation Released

2023/11/28

Marc Raspanti and Pamela Coyle Brecht‘s presentation “A Practitioner’s Guide to American Whistleblower Programs” is now available through World Online Lawyers With Excellent Practice (WOLEP). Mr. Raspanti and Ms. Brecht spoke to to WOLEP, an international network lawyers about the complexities of whistleblowing law, providing an overview of the five major United States whistleblower programs, all of which are open to Non-Americans. Their presentation was followed by a lively Q&A session with legal practitioners from across the world. Click here to read more about the presentation, or watch the full presentation below.   Read More

Marc Stephen Raspanti and Pamela Coyle Brecht to speak at the Federal Bar Association’s South Carolina Annual Meeting

2023/11/09

Pietragallo partners Marc Stephen Raspanti and Pamela Coyle Brecht will be speaking at the Federal Bar Association’s South Carolina Chapter Annual Meeting on the panel “The State of False Claims Litigation in South Carolina”. The meeting will be held on November 9, 2023. South Carolina has become a significant forum for robust False Claims Act litigation, particularly Qui Tam litigation. This panel will detail what has made the District of South Carolina such a significant venue for False Claims Act litigation and the important verdicts, results, and opinions that have come out of the district. Mr. Raspanti and Ms. Brecht will be joined on the panel by The Honorable Sherri Lydon, Amy Bower, Assistant U.S. Attorney for the District of South Carolina, and moderator Matthew R. Hubbell of Duffy & Young, LLC. Read More

Marc Stephen Raspanti and Pamela Coyle Brecht to present to World Online Lawyers with Excellent Practice (WOLEP)

2023/11/21

Join Pietragallo partners Marc Stephen Raspanti and Pamela Coyle Brecht as they present “A Practitioner’s Guide to American Whistleblower Programs” virtually to the World Online Lawyers with Excellent Practice (WOLEP) network on November 21, 2023 at 11 am EST. With a large number of United States whistleblower programs open to non-Americans, this webinar will provide the international audience with an overview of the five big whistleblower programs across the United States. To secure your spot for this event, please email office@wolep.com. Read More

Michael Morse to present at the American Bar Association’s 21st Annual Washington Health Law Summit

2023/12/11

Pietragallo partner Michael Morse will be presenting at the American Bar Association’s 21st Annual Washington Health Law Summit, on December 11-12, 2023 in Washington D.C.. Mr. Morse will be presenting “Health Care and Private Equity: Compliance, Control, and Mission Risks” alongside James Sheehan, Chief of the Charities Bureau, Office of the New York Attorney General. This session will address the scope, trends and potential benefits of private equity and healthcare, detailing the legal risks of private equity and joint venture models using literature and media analysis on some adverse patient impacts of private equity models and upstream individual liability claims. For more information and to register, click here. Read More

Marc Stephen Raspanti to present Mackrell International Webinar

2023/09/14

Pietragallo partner Marc Stephen Raspanti will present “American whistleblowing and how it differs from the rest of the world,” a webinar through Mackrell International on September 14, 2023 at 10:00am EST. Mackrell International is a legal network connecting attorneys across 60 countries with trusted counsel in different regions and jurisdictions. Pietragallo Gordon Alfano Bosick & Raspanti, LLP is the member firm serving both Pennsylvania and West Virginia. Mr. Raspanti will use his considerable domestic and international expertise to provide international member firms with a high-level overview of American whistleblowing, and how this affects anyone doing business in or with the United States. Dividing time between statutory whistleblowing and reward programs, Mr. Raspanti will share what makes American whistleblowing unlike anything else in in the world. Learn more about Mackrell here. Read More

NJ Justices Clarify Bribery Law Scope, But Questions Remain

2023/08/22

The entire New Jersey Legislature is up for election this year, and over 200 legislative candidates — plus scores more in down-ballot races — finally got word from the state Supreme Court as to whether they may lawfully accept bribes during their campaigns. The answer is a definitive no. In State v. O’Donnell,[1] the New Jersey Supreme Court decided unanimously on Aug. 7 that New Jersey’s bribery statute applies to candidates accepting bribes, as well as the patrons who offer them. Presumably, this decision will not alter any candidate’s fundraising strategy. All jokes about the integrity of New Jersey politics aside, the outcome in O’Donnell is less obvious than the 7-0 decision would suggest — although even before the decision came down, being caught receiving $10,000 in a Baskin-Robbins bag was a bad look for any candidate. Now, it is undeniably illegal, at least under state law. O’Donnell arises from a 2018 sting operation in which a tax attorney cooperating with the government allegedly gave then-Bayonne mayoral candidate Jason O’Donnell $10,000 in “street money” in exchange for a promise to make this cooperator the city’s tax counsel if O’Donnell won the election. O’Donnell lost, and was subsequently indicted for bribery under New Jersey Statutes Annotated 2C:27-2(d).[2] The Hudson County Superior Court dismissed the bribery charge against O’Donnell, agreeing that because he was merely a candidate, not a public official, the bribery statute did not apply to him, citing a 2012 federal decision by the U.S. District Court for the District of New Jersey in U.S. v. Manzo,[3] which concluded Section 2C:27-2(d) does not apply to candidates who are never elected to public office. The Appellate Division reversed, employing a broader reading of the statute, holding that the statute applies to unelected candidates, and it is irrelevant to the candidate’s culpability whether the candidate in fact ever assumes office.[4] Read More

21 Pietragallo Lawyers Named in 2024 The Best Lawyers in America® and Ones to Watch

2023/08/17

Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to announce that 21 lawyers have been named as 2024 The Best Lawyers in America® and Ones to Watch. In addition, partner Marc Stephen Raspanti have received “Lawyer of the Year” award for his work in Health Care Law in Philadelphia. Recognition by Best Lawyers is based entirely on peer review. Their process is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. The following were chosen as The Best Lawyers in America: Gaetan Alfano Bet-the-Company Litigation Commercial Litigation Employment Law – Individuals Employment Law – Management Litigation – Labor and Employment Charles Avalli Family Law Litigation – Trusts and Estates Trusts and Estates Joseph J. Bosick Construction Law Pamela Coyle Brecht Qui Tam Law Kerri Lee Cappella Family Law Mark Gordon Insurance Law Litigation-Insurance Workers’ Compensation Law – Employers Kenneth Horoho, Jr. Family Law David E. Lamm Product Liability Litigation – Defendants James F. Marrion Product Liability Litigation – Defendants Richard J. Parks Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Corporate Law Litigation – Real Estate William Pietragallo, II Bet-the-Company Litigation Commercial Litigation Mass Tort Litigation / Class Actions – Plaintiffs Personal Injury Litigation – Defendants Francis E. Pipak, Jr. Workers’ Compensation Law – Employer Marc Stephen Raspanti Criminal Defense: White-Collar Health Care Law – Lawyer of the Year Qui Tam Law Douglas K. Rosenblum Corporate Compliance Law Criminal Defense: White-Collar Clem C. Trischler Commercial Litigation Product Liability Litigation – Defendants Robert D. Weinberg Family Law Peter St. Tienne Wolff Commercial Litigation Litigation – Trusts and Estates Trusts and Estates   The following were chosen as Best Lawyers in America: Ones to Watch® in America: John W. Kettering Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Corporate Governance and Compliance Law Nonprofit / Charities Law Alexander M. Read More

Pietragallo Gordon Alfano Bosick & Raspanti, LLP and Gentile, Horoho & Avalli, P.C. to Merge

2023/08/01

Business and Commercial Litigation Firm Adds Family Law and Estate Administration/Orphans’ Court Practice AUGUST 1, 2023 – Two established Pittsburgh law firms have agreed to merge, bringing a highly-experienced family law and estate planning, administration, and litigation practice to a nationally-recognized business and litigation firm. Effective August 1, 2023, Gentile, Horoho & Avalli, P.C (GHA) will merge with Pietragallo Gordon Alfano Bosick & Raspanti, LLP (Pietragallo). All seven GHA attorneys, well-known for their experience in complex and high net-worth divorce and custody disputes as well as intricate estate/trust cases will now join Pietragallo, a multi-disciplined business and commercial litigation firm, with offices in Philadelphia, Pittsburgh, and Sharon, PA, Steubenville, OH, Weirton, WV, and Palm Beach Gardens, FL. The merger comes on the heels of Pietragallo’s expansion into Palm Beach Gardens in 2022. Pietragallo’s clients range from Fortune 200 and large privately-held companies to municipal entities and entrepreneurial businesses in a broad diversity of industries and business sectors. Gentile, Horoho & Avalli brings to Pietragallo more than 30 years of experience in providing exceptional legal counsel in the areas of family law and estates and trusts as well as complex orphans’ court litigation. “We are excited to engage with these outstanding practitioners in a new sphere of domestic-business litigation,” said Pietragallo chairman William Pietragallo II. “Our practices share a common commitment to achieving results.” “The lawyers at Pietragallo have distinguished themselves as leaders in our profession and in the communities they serve,” said Kenneth J. Horoho, Jr. “The blending of our two firms will provide our current clients with experienced business litigation attorneys who are known for problem-solving and results.” The family law/estate litigation attorneys joining Pietragallo include: Kenneth Horoho, Jr., Partner Charles Avalli, Partner Kerri Lee Cappella, Partner Carla Schiff Donnelly, Partner Lorraine W. Mervan, Special Counsel Robert D. Weinberg, Associate Adam J. Read More