North America

Defendant Aventis Pharma Awarded Over $17.2 Million in Attorneys’ Fees in False Claims Act Case

In a move that reminds us that successful defendants can—and should—seek attorneys’ fees in the right case, a magistrate judge in the U.S. Court of Appeals for the Ninth Circuit awarded pharmaceutical company Aventis Pharma SA (“Aventis”) attorneys’ fees in a False Claims Act (“FCA”) case brought by a competitor, Amphastar Pharmaceuticals Inc. (“Amphastar”). The FCA contains a fee-shifting component, permitting prevailing parties to recover attorneys’ fees from the opposing party—but the playing field is not equal. This fee-shifting provision entitles a prevailing plaintiff to an award of reasonable attorneys’ fees and costs, regardless of whether the government elects to intervene in the case. 31 U.S.C. § 3730(d)(1)-(2). A defendant, on the other hand, can only be awarded attorneys’ fees in cases in which the government has declined to intervene and where the defendant can show that the opposing party’s action was “clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.” 31 U.S.C. § 3730(d)(4).

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Restaurants with unconfirmed bankruptcy plans may seek emergency dismissal of bankruptcy case to gain access to Restaurant Revitalization Funds

The Restaurant Revitalization Fund, which is a $28.6 billion federal fund for struggling restaurants that was established as part of the $1.9 trillion American Rescue Plan passed on March 6, appears to be having an unintended effect on bankrupt restaurants trying to apply while their bankruptcy cases are pending. We previously summarized the key terms of the Restaurant Revitalization Fund and details regarding the portal and the initial applicants for the fund can be found here. Unlike the Paycheck Protection Program that provided loans throughout the COVID-19 pandemic, the Restaurant Revitalization Fund (the RRF) offers substantial grants, not loans, to restaurants that have struggled for the past year, and restaurants may use the grants to pay for payroll expenses, mortgage payments, rent utilities, supplies, and food and beverage expenses, among other costs. Like the Paycheck Protection Program, however, funds will be distributed on a first-come, first-serve basis, and companies that are currently in chapter 11 bankruptcy are not eligible for grants from the RRF unless the bankrupt company already has a confirmed plan of reorganization. Although companies in bankruptcy were not eligible for PPP loans for much of last year, the Small Business Administration recently revised its guidelines in April 2021 to provide the companies in chapter 11 bankruptcy are eligible for PPP loans if they have a confirmed reorganization plan. Read more…

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OIG Issues Favorable Advisory Opinion on Ambulatory Surgery Center Joint Venture

The U.S. Department of Health and Human Services’ Office of Inspector General (“OIG”) recently issued Advisory Opinion No. 21-02, regarding a joint investment by a health system, a manager, and certain surgeons in an ambulatory surgery center (“ASC”) (the “Proposed Arrangement”). According to a national survey, most hospitals and health systems are planning to increase their investments in ASCs and anticipate converting hospital outpatient departments to ASCs. Many hospitals with ASCs operate the ASCs as physician joint ventures. As payors and patients continue to show interest in having outpatient procedures performed in ASCs, there is an expected trend to see an increase in investments and joint ventures in ASCs therefore making the Advisory Opinion particularly noteworthy.

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Podcast: Are Vaccine Passports the Key to Reopening? – Diagnosing Health Care

In this episode of the Diagnosing Health Care PodcastThe vaccine passport has been a major topic of discussion as businesses and governments consider how to balance privacy and safety through the rollout of the COVID-19 vaccine. Epstein Becker Green attorneys Patricia WagnerAlaap Shah, and Jessika Tuazon discuss the privacy and security concerns companies must weigh as they consider developing or implementing vaccine passports, such as the collection and use of an individual’s personal health information. As state governments and the private sector take the lead on developing vaccine passport initiatives, it is imperative that businesses implement better privacy and security practices to mitigate or manage risk.

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Video: CDC Guidance for the Fully Vaccinated, NY HERO Act, ABC Test, and FAAAA Preemption – Employment Law This Week

As featured in #WorkforceWednesday: This week, we focus on the Centers for Disease Control and Prevention’s (CDC’s) new guidance for vaccinated individuals and what it means for accommodations.

Employers Navigate New CDC Guidance for Fully Vaccinated Individuals

Last week, the CDC updated its guidelines to state that it is safe for fully vaccinated people to resume normal activities without masks or social distancing “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Attorneys Shira Blank and Susan Gross Sholinsky explain what this means for employers and businesses that are places of public accommodation.

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Health Care Providers with Claims Arising Out of New York’s Failed Health Republic Insurance Co. to Be Paid in Full

In December 2015, we wrote about the many failed health insurance co-ops created under the Affordable Care Act (“ACA”), and the impact of those failures on providers and other creditors, consumers, and taxpayers. At that time, co-ops across the country had more than one million enrollees. As of January 2021, there were roughly 120,000 enrollees in three remaining co-op plans. Nonprofit co-op insurers were intended to increase competition and provide less expensive coverage to consumers. However, low prices, lack of adequate government funding, restrictions on the use of federal loans for marketing, and low risk corridor payments from the Centers for Medicare & Medicaid Services created financial challenges for these insurance plans

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New York HERO Act Establishes Additional COVID-19 Workplace Safety Requirements

Governor Cuomo signed the HERO Act (the Act) into law on May 5, 2021. The Act requires all private New York employers to put certain COVID-19 safety standards into place and prepare a plan aimed at preventing the transmission of COVID-19 and other airborne infectious diseases at work. Most provisions of the Act go into effect on June 4, 2021. However, the provision of the Act that permits employees to form a joint labor-management health and safety committee does not become effective until November 1, 2021, and applies only to private employers with 10 or more employees. Read more…

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U.S. Department of Justice Announces First Charges Brought Under the Accelerated and Advance Payment Program

On April 8, 2021, the U.S. Department of Justice (“DOJ”) announced the first charges brought in connection with alleged fraud on the Accelerated and Advance Payment Program, administered by the Centers for Medicare & Medicaid Services (“CMS”).[1]  According to the indictment, Francis Joseph, M.D., a Colorado physician, has been charged with misappropriating nearly $300,000 from three different COVID-19 relief programs: the Accelerated and Advance Payment Program, the Provider Relief Fund, and the Paycheck Protection Program.[2]

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Chicago Enacts COVID-19 Vaccine Anti-Retaliation and Time Off Ordinance

The City of Chicago recently enacted the Chicago COVID-19 Vaccine Anti-Retaliation Ordinance.

The Vaccine Anti-Retaliation Ordinance allows workers in Chicago – including independent contractors — to get vaccinated during a scheduled “shift,” requires pay for hours taken to get vaccinated (if an employer mandates the vaccine), and prohibits retaliation for getting vaccinated during a scheduled shift.

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COVID-19 Vaccination Policies: Should Employers Recommend or Require Vaccination?

On April 29, 2021, The Boston Globe published an editorial entitled, “It’s time for employers to impose vaccine mandates.” According to The Boston Globe Editorial Board, “COVID vaccines, which are extremely safe and effective, are Americans’ way out of this nightmare, and employers – including the state – owe it to their workers and the public to create safe working conditions.”

While a mandatory vaccination policy may make sense for some employers, the issues associated with such a policy are complex and require careful consideration. As an employer, does it make sense for you to implement a mandatory vaccination policy at this point? Or in the near future? Should you consider a non-mandatory vaccination policy?

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