Posts tagged ‘The Avanti Law Group’

Supreme Court extends whistle-blower protections under anti-fraud law

WASHINGTON — The Supreme Court on Tuesday expanded protections for whistle blowers covered by an anti-fraud law passed following the collapse of energy giant Enron, ruling outside accountants, auditors and lawyers cannot be fired or punished for exposing fraud.

The 6-3 decision will have an effect in the mutual fund and financial services industries, the court said, because they rely heavily on outside contractors and advisers.

The case before the court arose when two employees of a firm that did research for the Fidelity family of mutual funds revealed the funds were overstating expenses. They alleged that in some instances, Fidelity was operating “veiled index funds” while collecting a fee as though they were actively managed.

The two employees say they were reprimanded and ultimately dismissed for having exposed this fraud. When they sued their employer under the Sarbannes-Oxley Act, they lost when an appeals court ruled the law’s protection for whistle blowers covered only employees of public firms, not outside advisers and accountants.

In their appeal to the high court, they said this would reimpose “the very code of silence” that allowed massive frauds such as Enron to occur.

Justice Ruth Bader Ginsburg, speaking for the court, said Congress meant to broadly protect whistle blowers who could expose wrongdoing. It made no sense, she said, to think “a Congress, prompted by the Enron debacle, would exclude from whistle-blower protection countless professionals equipped to bring fraud on investors to a halt.”

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer and Elena Kagan agreed.

A dissent was filed by Justice Sonia Sotomayor who said the law covered only “employees” of public companies, not outside advisers. Justices Anthony Kennedy and Samuel Alito agreed with her.

The whistle-blower provisions in the law protect those who reveal frauds from retaliation, and they also allow them to receive a share of money that is recovered if a fraud is exposed.

Source: http://lat.ms/1kR43sb

 

Supreme Court Divided on Limiting Securities Fraud Suits

The Supreme Court appeared divided into three camps on whether to overrule or alter a long-standing legal precedent that provides the foundation for many class-action lawsuits alleging securities fraud.

The court heard an hour-long oral argument in a case involving Halliburton Co. and whether to overturn a 1988 Supreme Court decision which held that investors in securities-fraud lawsuits don’t have to prove they relied upon any misleading statements by a company.

By the end of an hour-long argument session, it appeared some justices were looking for a middle-ground to resolve the case.

The court, in Basic v. Levinson, said it was enough that investors rely on the integrity of stock prices, which are a reflection of publicly available company information. That legal doctrine, known as fraud-on-the-market, has provided a basis for allowing investors to pool their claims into one large class-action lawsuit. Read the full WSJ story here.

If the court abandons its earlier precedent it could make it difficult for investors to bring class-actions alleging they were misled.

The court’s four liberal justices, including Justice Elena Kagan, voiced resistance Wednesday to overturning the 1988 decision.

Justice Kagan said Congress has been active in passing securities-law reforms and has had “every opportunity” to overrule or alter the court’s Basic decision, but hasn’t done so. She and other liberal justices suggested there was no strong justification for the court to overrule its prior precedent, which the court generally is reluctant to do.

Conservatives justices expressed concern about the court’s 1988 ruling, but appeared divided on how to proceed.

Justices Antonin Scalia and Samuel Alito voiced skepticism of the premises behind the court’s earlier decision, suggesting it had made it too easy for investors to have their lawsuits certified to proceed as class-actions. Justice Scalia said once investor cases are allowed to go forward as class-actions, company defendants feel pressure to settle even weak cases.

But Justice Anthony Kennedy, a moderate conservative justice, repeatedly asked questions that sought a compromise in deciding the case. He asked whether companies defending against securities-fraud allegations ought to have a chance, before a class-action is certified, to argue that any alleged company misrepresentations didn’t have an impact on the company’s stock price. The court could embrace that approach without abandoning its earlier case, he suggested.

Other justices later voiced interest in Justice Kennedy’s line of questioning. By the end of the session, it didn’t appear that a majority of the court was prepared to fully abandon the 1988 precedent.

The case is being closely watched in investing circles and by the business community. The underlying dispute focuses on a decade-old lawsuit covering investors who bought HalliburtonHAL +1.02% shares between 1999 and 2001. The plaintiffs allege that Halliburton misled the public about its asbestos liabilities, about revenue on construction contracts, and about the benefits of its 1998 merger with Dresser Industries. Halliburton argued that any misrepresentations alleged by the plaintiffs had no actual impact on the company’s share price.

Halliburton asked the court to overturn the 1988 precedent, but as a fallback position, has also advocated for changes to the legal process that are similar to the ones raised by Justice Kennedy.

A ruling is expected by the end of June.

Source: http://blogs.wsj.com/law/2014/03/05/supreme-court-divided-on-limiting-securities-fraud-suits/

The Avanti Law Group: Legal Fraud of the Century

There are plenty of candidates for that title, but after Tuesday the prize belongs to attorney Steven Donziger. Federal judge Lewis Kaplan ruled that the environmental activist had engaged in a massive racketeering scheme and declared that a $9.5 billion judgment against Chevron CVX -0.89% in an Ecuadorian court cannot be enforced in the United States.

 

As our readers know, in 1993 Mr. Donziger sued Texaco (now merged with Chevron) for what he said was the company’s failure to clean up oil pits it drilled in Lago Agrio in the 1970s with state oil company PetroEcuador. Chevron had signed proof that it had cleaned its portion of the pits and had been absolved of any liability, but Mr. Donziger sniffed the potential windfall of a media-ready environmental “disaster” and sued the company for $113 billion. He enlisted all manner of celebrity helpers, including actress Daryl Hannah.

 

He won in Ecuador, but only thanks to what Judge Kaplan found were “dishonest and corrupt” measures including bribery, coercion and engaging an American consulting firm to ghostwrite an independent expert’s reports. In a 485-page opinion, the judge called the case “extraordinary,” calling the actions of Mr. Donziger and his legal team “offensive to the laws of any nation that aspires to the rule of law, including Ecuador.” The corrupt extortion was intended to “instill fear of a catastrophic outcome in order to increase the amount Chevron would pay to avoid the worst,” Judge Kaplan wrote.

 

Chevron refused to give in, and now the case may serve as an example of how companies can fight back if they have the nerve and the cash. Mr. Donziger says he’ll appeal, but on the factual record he stands discredited. Another worthy casualty may be financially strapped Washington law firm Patton Boggs, which got involved on behalf of Burford Capital’s BUR.LN -0.44% effort to provide litigation financing to the plaintiffs. Tuesday’s opinion means the firm won’t collect any plunder, which couldn’t happen to a nicer crowd.

 

Mr. Donziger is a pioneer of the foreign environmental tort, trying to exploit Third World juries to bleed U.S. companies regardless of the merits. We’re glad to see his dishonesty face American justice. `

The Avanti Law Group: Haste Clouds Long-Term Effort on Mortgage Fraud

A report issued by the Justice Department’s inspector general, Michael E. Horowitz, underscores the danger of extolling short-term results when it comes to prosecuting white-collar crimes. The report highlights how generating headlines seemed to take precedence over accurate figures in the government’s fight against mortgage fraud.

In October 2012, less than a month before the presidential election, Attorney General Eric H. Holder Jr. called a news conference to trumpet the Justice Department’s success in combating foreclosure fraud through a program called the Distressed Homeowner Initiative. “The success of the Distressed Homeowner Initiative, and the developments we announce today, underscore our determination to pursue these and other financial fraud criminals around the country,” Mr. Holder said in a statement.

The claims of great success came during a time of persistent criticism that the Justice Department was not taking stronger action to pursue fraud in the run-up to the financial crisis. The numbers offered by Mr. Holder for the first year of the initiative were impressive: charges filed against 530 defendants, including 172 executives, from frauds that resulted in losses of more than $1 billion.

After questions from the news media about those claims, almost a year later the Justice Department revised those figures significantly downward. The total number of defendants charged was 107, with no reference to any executives, and the loss from criminal activity was $95 million. In response to Mr. Horowitz’s report, a Justice Department spokeswoman pointed out: “In the time period in question, the number of mortgage fraud indictments nearly doubled, and the number of convictions rose by more than 100 percent.”

An interesting question is whether accurate reporting of the results, like a 100 percent increase in convictions, would have generated the kind of headlines the government seemed to want. Bringing that many more cases for a complex white-collar crime is a good result, but claiming to pursue several corporate executives gave the original numbers much more punch in light of accusations that the Justice Department was being soft on Wall Street.

The inspector general’s report puts much of the blame for the inflated figures on how the F.B.I. gathered the information for Mr. Holder. Mr. Horowitz noted that “we found significant breakdowns in the process used to develop the results of the Distressed Homeowners Initiative.” That occurred at least in part because the F.B.I. had “too little time and resources available to allow for vetting of the data.”

The report does not give a reason for taking such a slapdash approach, but I think it is clear that there was pressure to announce the success of the initiative to demonstrate how the Justice Department was responding to public outcry over the lack of tangible evidence that prosecutors were taking a hard line. And so we have an example of “act in haste, repent at leisure.”

Intensifying the pressure to report robust results was additional money provided by Congress for positions to be used to combat mortgage fraud after the financial crisis. Both the Justice Department and the F.B.I. received millions of dollars for new employees, and that means showing the money was put to good use. But Mr. Horowitz’s report states that mortgage fraud was not a high priority for the F.B.I., in part because it was declining as lenders toughened their standards. In these days of tight budgets, however, no agency turns down an appropriation.

The government is fond of calling a new initiative an operation, which implies a sense of urgency and resolve. In 2010, before the Distressed Homeowner Initiative, the Justice Department started Operation Stolen Dreams to take on a broad array of mortgage frauds. Less than three months after it started, Mr. Holder announced that prosecutors had brought cases involving “1,215 criminal defendants nationwide, including 485 arrests, who are allegedly responsible for more than $2.3 billion in losses.”

Those are impressive numbers for a white-collar crime, especially in such a short period, but their validity may be open to question. Mr. Horowitz’s report points out that his office did not audit these figures, and in light of the other findings, he recommends that the Justice Department “revisit the results.”

Catching those engaged in mortgage fraud is not like operating a sobriety checkpoint or drug dragnet that quickly yields arrests. Trumpeting initiatives for pursuing complex white-collar crimes whose success will be reported in months rather than years runs the risk of offering results that don’t grab the public’s attention — or worse, makes them look like failures.

As an initial matter, just figuring out what the numbers are can be difficult. Mortgage fraud is not a separate crime but a subset of federal offenses like bank fraud, mail fraud and wire fraud. So prosecutions involving mortgages may not show up easily in government records.

A greater problem in announcing a crackdown is that these types of cases often don’t come to light until months, or even years, after the transactions, and the fraud can take many different forms. During the period when real estate values soared, there were schemes to inflate property values so that lenders were making loans for far more than houses were worth. Once the housing bubble burst around 2007, mortgage frauds morphed into schemes to defraud homeowners trying to avoid foreclosure.

Putting together a mortgage fraud case requires amassing a large volume of documents to track ownership, housing values and the transfer of money. Even figuring out where a fraud involving inflated housing values took place usually requires a bank or real estate company to report suspicious activity, which could come long after the scheme ended when the loan finally defaults.

For scams involving homeowners who face foreclosure, just identifying whether a crime took place is difficult. Those in danger of losing their homes may grasp at straws in seeking help, with companies taking advantage of them by doing just enough to make it appear they tried to help. Victims may not recognize a fraud or have the time and energy to pursue a complaint in the face of losing their homes.

This type of scheme often involves modest sums taken from those who can least afford it. The Justice Department tends not to pursue small cases, leaving them to local law enforcement, so any number of violations could easily fall through the cracks.

Mortgage fraud, like most white-collar crimes, requires painstaking investigation over a long period, so there will never be a flood of cases. And even when the government commits resources to investigations, there will be some that do not pan out.

But that does not make headlines when the government paints itself into a corner by pursuing initiatives that imply a promise of quick results.

The Avanti Law Group: Credit Suisse Waits for $11 Billion Answer in N.Y. Fraud Suit

Feb. 19 (Bloomberg) — As Credit Suisse Group AG sees it, time has run out on New York Attorney General Eric Schneiderman’s pursuit of Wall Street banks for mortgage fraud that helped trigger the financial crisis.

Schneiderman sued Credit Suisse in 2012 as part of a wide- ranging probe into mortgage bonds. He claimed Switzerland’s second-largest bank misrepresented the risks associated with $93.8 billion in mortgage-backed securities issued in 2006 and 2007.

Credit Suisse asked a Manhattan judge in December to dismiss Schneiderman’s case, as well as his demand for as much as $11.2 billion in damages. The bank argued that New York, by waiting so long to file the lawsuit, missed a three-year legal deadline for suing. The state countered that it had six years to file its complaint.

If the bank wins, Schneiderman will face a new roadblock as he consi

ders similar multibillion-dollar claims against a dozen other Wall Street firms. The judge in New York State Supreme Court could rule at any time.

“It would obviously tilt everything in the favor of Credit Suisse and similarly situated financial institutions,” said David Reiss, a professor at Brooklyn Law School, hindering New York’s remaining efforts to hold banks accountable for mistakes that spurred a recession.

Obstacles Posed

The obstacle posed by such statutes of limitation in pursuing m

ortgage-bond cases may be traced back to Andrew Cuomo, Schneiderman’s predecessor. Although now-Governor Cuomo didn’t file any such cases against the banks, he announced a probe into all aspects of the mortgage business in 2008.

In doing so, he may have started the clock ticking on how long a state suit could be filed, making it impossible for fellow Democrat Schneiderman to argue his office didn’t learn of the bank’s conduct until he took office in 2011.

On Feb. 6, Credit Suisse said it was setting aside 514 million Swiss francs ($568 million) for legal issues, including 339 million francs for mortgage litigation. The bank may be preparing to resolve a related bond insurer lawsuit, Mark Palmer, an analyst with BTIG LLC in New York, said in a Feb. 10 note.

Matt Mittenthal, a spokesman for Schneiderman, and Dani Lever, a spokeswoman for Cuomo, declined to comment on the Credit Suisse case.

Filing Deadline

Schneiderman, 59, avoided a filing deadline dispute by settling a mortgage-bond case with JPMorgan Chase & Co. last year. The state got $613 million in that pact, New York’s share of the landmark $13 billion federal-state accord with the largest U.S. lender.

Armed with the Martin Act, New York’s powerful anti-fraud tool, Schneiderman has said he is seeking settlements with the other, unidentified banks.

In the lawsuit against Zurich-based Credit Suisse, filed in November 2012, he claims the bank ignored warning signs about the quality of loans it was packaging and selling. One example cited was its use of New Century Financial Corp. mortgages after that firm’s 2007 bankruptcy.

The attorney general’s lawsuit involve

s 64 Credit Suisse bond offerings in 2006 and 2007. Credit Suisse has said the losses on those offerings were only about half of the $11.2 billion claimed by Schneiderman.

One Credit Suisse executive described some of the mortgages the bank sold as “complete and utter garbage,” according to the complaint. The bank relied on mortgage originators that “systematically abandoned underwriting standards in the years leading up to the collapse of the housing market,” Schneiderman said.

Thrown Out

Credit Suisse, which denies any wrongdoing, told Justice Marcy S. Friedman Dec. 11 that the suit should be thrown out because it was filed more than three years after the alleged wrongdoing was discovered.

Consumer fraud and personal injury claims are generally subject to a three-year statute of limitations under New York law, while financial frauds can be granted six years.

The Avanti Law Group: Federal crackdown on Medicare fraud in metro Detroit hits it big

The U.S. Department of Justice could dub 2013 the year its fight against Medicare billing fraud in Southeast Michigan yielded the first real payoff.

Last year, the Detroit Medicare Fraud Strike Force, deployed here from Washington, and a locally organized Health Care Fraud Unit of prosecutors together brought charges in fraud schemes billing more than $380 million to the federal program. That’s more than double the bad billing amount charged in any preceding year.

It’s been a slow build since the strike force came to Detroit in 2009 as part of the national Health Care Fraud Prevention and Enforcement Action Team, referred to as HEAT, to ferret out what data analysis suggested was hundreds of millions worth of fraud here.

The effort is gaining traction, according to both investigators and a Crain’s analysis of local casework and Justice Data.

In 2013, federal prosecutors obtained 18 local indictments against 46 defendants in fraud schemes totaling $380.2 million — fueled by $225 million in unnecessary medical treatment attributed to oncologist Farid Fata — but even without that, higher than the previous record of $143.3 million in billings charged in 2011.

But more significantly, that figure approaches for the first time the billing volume that experts believe is likely fraudulent within the $5 billion-plus in annual Medicare expenditures in Southeast Michigan. Since the first indictments from the increased enforcement presence came down in June 2009, nearly 170 people have pleaded guilty and nearly three dozen were convicted by juries. Another 110 await a finding by a jury or judge this year, including three who are on trial this week before U.S. District Judge Arthur Tarnow.

Investigators said the success is due to a mix of cutting-edge surveillance and witness interviews that establish crossover points between one bad billing scheme and another.

Over time, Justice has begun to catch criminals before they close shop and change markets as in years past, and the trickle of closed cases has become a verifiable stream.

Feeling the HEAT

Local prosecutions from the national HEAT program, a collaboration between Justice and the U.S. Department of Health and Human Services, and by the local Health Care Fraud Unit, formed by U.S. Attorney Barbara McQuade in Detroit in 2010, have together roped in 341 defendants in $745 million of alleged fraudulent Medicare billing schemes to date.

“Based on Medicare spending data, we see per-beneficiary spending is going down in this market. One possible conclusion from that is we are indeed making headway,” McQuade said.

“That’s consistent with what we see, but a lot of the law enforcement community will tell you about the balloon effect, where squeezing one area (of fraud) makes another expand.”

The decline in per-beneficiary spending is tentative — the most recent year available is 2010, but it shows that reimbursements from Medicare fell anywhere from $50 to $400 per enrollee in five Southeast Michigan hospital referral regions from 2009, which was the first year of strike force prosecution. The regions saw nothing but increases the preceding five years.

Even so, the $10,944 average expenditure per Medicare enrollee across the region is more than the average payout in 90 percent of the 306 regions tracked nationwide.

The per-beneficiary data is compiled by the Dartmouth Atlas of Health Care, a program of the Dartmouth Institute for Health Policy and Clinical Practice.

Since January 2011, McQuade said, the amount billed to Medicare for psychotherapy locally has gone down by 70 percent, and home health care has seen reduced billings, although billings are still generally high.

“We do have a recently intercepted conversation on wiretap, where two individuals were recorded saying they need to be more careful now because they’re really cracking down in this area. That’s encouraging,” McQuade said.

“Does that mean criminals stop, or do they go elsewhere? That’s hard to know. But when you do bring down some of the actors, you do seem to bring down at least some of the fraud occurring along with them.”

Nationwide, more than 1,500 people have been charged since March 2007 in connection with more than $5.1 billion in Medicare billings, by the strike force in nine cities where software operated by HHS found disproportionate Medicare billing volumes believed to be due to fraud.

Read full article here…

The Avanti Law Group: IRS releases Dirty Dozen Tax Scams List for 2014

Washington, D.C. – Every year, people fall prey to tax scams. The IRS wants you to be safe and informed – and not become a victim.

“Some people are victimized by tax scams, while some get involved after being lured in by false promises of big money,” said IRS spokesman Dan Boone.

Taxpayers who get involved in illegal tax scams can lose their money, or face stiff penalties, interest and even criminal prosecution. Remember, if it sounds too good to be true, it probably is.

Here are some highlights from the 2014 update of IRS’s annual “Dirty Dozen” list of tax scams.

Identity theft. Tax fraud using identity theft tops this year’s Dirty Dozen list. In many cases, an identity thief uses a taxpayer’s identity to illegally file a tax return and claim a refund. For the 2014 filing season, the IRS has expanded efforts to better protect taxpayers and help victims. Find more information on the identity protection page on http://www.IRS.gov.

Pervasive telephone scams.  The IRS has seen an increase in local phone scams across the country. Callers pretend to be from the IRS in hopes of stealing money or identities from victims. If you get a call from someone claiming to be from the IRS – and you know you owe taxes or think you might owe taxes, call the IRS at 1.800.829.1040. If you get a call from someone claiming to be from the IRS and know you don’t owe taxes or have no reason to think that you owe taxes, then call and report the incident to the Treasury Inspector General for Tax Administration at 1.800.366.4484.

Phishing.  Phishing scams typically use unsolicited emails or fake websites that appear legitimate. Scammers lure in victims and prompt them to provide their personal and financial information. The fact is that the IRS does not initiate contact with taxpayers by email to request personal or financial information. This includes any type of electronic communication, such as text messages and social media channels.

False promises of “free money” from inflated refunds. Scam artists often pose as tax preparers during tax time, luring victims in by promising large tax refunds. The bottom line is that you are legally responsible for what’s on your tax return, even if someone else prepares it. Taxpayers who buy into such schemes can end up penalized for filing false claims or receiving fraudulent refunds. Take care when choosing someone to do your taxes. Only use a qualified tax preparer who will sign your return and enter their IRS Preparer Tax Identification Number (PTIN). For tips about choosing a preparer, visit http://www.irs.gov/chooseataxpro .

Impersonation of charitable organizations. Taxpayers need to be sure they donate to recognized charities. Following major disasters, it’s common for scam artists to impersonate charities to get money or personal information from well-intentioned people. They may even directly contact disaster victims and claim to be working with the IRS to help the victims file casualty loss claims and get tax refunds.

Frivolous arguments.  Frivolous schemes encourage taxpayers to make unreasonable and outlandish claims to avoid paying the taxes they owe. The IRS has a list of frivolous tax arguments that taxpayers should avoid. While taxpayers have the right to contest their tax liabilities in court, no one has the right to disobey the law or ignore their responsibility to pay taxes.

Tax scams can take many forms beyond the “Dirty Dozen”. The best defense is to remain vigilant. Get more information on tax scams at IRS.gov.

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