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Edward Snowden Calls for Reform of Whistleblower Laws

Edward Snowden, the now notorious former National Security Agency contractor who exposed classified documents to several media outlets, has recently called for more extensive whistleblower protections to protect concerned contractors and employees.  In a live chat transmitted on FreeSnowden.is, Snowden stated that legal channels for raising concerns were not available to him. Had he revealed the NSA programs he deems unconstitutional but classified to Congress, he states he would have been charged with a felony.  Snowden justified his action of approaching news outlets as the only viable choice under current whistleblower laws.

Snowden went on to explain that while NSA employees have access to whistleblowing channels, contractors, such as himself, do not.  Further, Snowden said the current laws do not provide real protections for anyone.  He said that had there been a real process in place where reports of wrongdoing were reviewed by independent arbiters, he would not have had to make the sacrifices he has to expose the facts he deemed necessary to the American public.

Snowden states that due to gaps in the federal whistleblower laws, he cannot return to the U.S. as he would be unprotected.  Snowden, who fled to Hong Kong and then Russia, acknowledges that returning to the U.S. would be the best resolution for the government, public and himself.  However, because Snowden is among a group of contractors exempt from current whistleblower laws, he feels a return is not possible.  Snowden believes he would not receive a fair trial absent adequate whistleblower protections.

The saga of Edward Snowden has cast new light on federal and state whistleblower laws.  Much of the controversy stems from an important initial question, is Edward Snowden a whistleblower?  Under the Whistleblower Protection Act, any disclosure made by a covered employee who reasonably believes there has been a violation of any rule, regulation, or law, or gross waste of funds, mismanagement, abuse of authority, or a substantial danger to public health and safety, is protected.  Since Snowden’s leak of documents, numerous lawsuits have been filed challenging the legality of the surveillance programs Snowden believed to be unconstitutional.

However, just because the leaked information served the public interest by exposing potential government illegality does not mean Snowden is protected under the law.  Traditionally, the intelligence community has been exempted from the Whistleblower Protection Act.  In 1998, Congress passed the Intelligence Community Whistleblower Protection Act.  The Act established a procedure for internal reporting within the agencies and through the Inspector General, but has been widely criticized as being ineffectual.  The Act provided no remedy for reprisals and merely identified the whistleblowers, leaving them vulnerable to retaliation.

Under current whistleblower acts, Snowden would not be considered a whistleblower.   For one, the information he disclosed arguably does not meet the criteria.  The surveillance programs he revealed are presumed to be constitutional, and not illegal, given the assent of Congress and the intelligence community.  However, even presuming what Snowden exposed was illegal, he meets a second problem under the law’s definition.  The Whistleblower Act protects public disclosures only if such disclosure is not prohibited by law.  As the information was classified and its disclosure a felony, Snowden would only have been protected had he brought his concerns to the NSA’s inspector general or to a member of the congressional intelligence committee.  Even further, under the current law, it is not clear that intelligence contractors are even protected.

The case of Edward Snowden will likely continue to have an impact on whistleblower laws and cases for years to come. At Barrett Law PLLC, we view the role of whistleblowers as vital to our community.  In Mississippi, whistleblowers are protected from retaliation when they step forward with important disclosures of law violations and may be entitled to compensation.  If you have potential information concerning a violation in your workplace, call us today at 1 (601) 790-1505 to schedule a free initial consultation.

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United States Department of Labor Files Whistleblower Lawsuit Against Clearwater Paper Corporation

On October 23, 2013, the United States Department of Labor, Occupational Safety and Health Administration, through Secretary of Labor Thomas E. Perez, filed a lawsuit against Clearwater Paper Corporation on behalf of a former employee of the company in the United States District Court for the District of Idaho.

According to the Complaint, Clearwater Paper Corporation operates a wood mill in Lewiston, Idaho, at which the former employee worked.  The former employee, Anthony Tenny, began working for Clearwater Paper Corporation in in 2004.  He was discharged on June 25, 2010.  During his employment with Clearwater Paper Corporation, Mr. Tenny repeatedly expressed concern to the company that its employees were being exposed to excessive amounts of red cedar dust.  Mr. Tenny also expressed concern to Clearwater Paper Corporation about the health affects of this exposure on the company’s employees.

Mr. Tenny’s concerns went unheeded, and in May 2010, he contacted the Occupational Safety and Health Administration (“OSHA”) about his concerns.  As a result of Mr. Tenny’s complaint to OSHA, it inspected the Clearwater Paper Corporation’s facilities in Lewiston.  Approximately one month later, Mr. Tenny was reprimanded and then terminated four days later.

One June 29, 2010, four days after his termination, Mr. Tenny filed a whistleblower complaint with OSHA.  OSHA investigated the complaint and determined that Clearwater Paper Corporation had violated the Occupational Safety and Health Act of 1970.  It determined that Clearwater Paper Corporation retaliated against Mr. Tenny for reporting his safety and health concerns to OSHA.

The Complaint seeks in injunction against Clearwater Paper Corporation from engaging in further violations of the Occupational Safety and Health Act of 1970; damages to Mr. Tenny for lost wages and compensatory and exemplary damages; reinstatement of Mr. Tenny; and the posting of appropriate notices informing its employees of their rights under the Occupational Safety and Health Act of 1970.  The total damages sought are in excess of $300,000.00.

OSHA is responsible for administering twenty-one federal whistleblower protection laws.  These include:  the Asbestos Hazard Emergency Response Act; the Clean Air Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Consumer Financial Protection Act of 2010; the Consumer Product Safety Improvement Act; the Energy Reorganization Act; the Federal Railroad Safety Act; the Federal Water Pollution Control Act; the International Safe Container Act; the Moving Ahead for Progress in the 21st Century Act; the National Transit Systems Security Act; the Occupational Safety and Health Act; the Pipeline Safety Improvement Act; the Safe Drinking Water Act; the Sarbanes-Oxley Act; the Seaman’s Protection Act; portions of the Food Safety Modernization Act; portions of the Affordable Care Act; the Solid Waste Disposal Act; the Surface Transportation Assistance Act; the Toxic Substances Control Act; and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

If you are a federal employee and have been terminated or otherwise suffered adverse action because you raised concerns about the illegality or impropriety of your employer’s actions, Barrett Law, PLLC can help.  Please be aware that there are relatively short and absolute deadlines for filing complaints with OSHA regarding whistleblowing allegations.  As such, if you have suffered such an action, please contact us immediately to set up a consultation.  We have a history of helping to protect the rights of whistleblowers, and stand ready to help you.  To find out more about your legal rights, contact us today at (601) 790-1505.

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CA Technologies Agrees to Settle Whistleblower Lawsuit

On November 12, 2013, the United States Department of Justice, as well as several state Attorneys General offices, announced that they would be settling a whistleblower lawsuit against CA Technologies, Inc., brought against the latter by one of its former employees, Ann Marie Shaw.  The settlement involves the United States, California, Florida, Hawaii, Illinois, Massachusetts, New York (City of and State of), Nevada, Virginia, and the District of Columbia.  The settlement totals $11 million.  The United States Department of Justice will receive $8 million, and the remaining $3 million settlement amount will be divided amongst the aforementioned states and the District of Columbia.  California will receive the sum of $983,807.00; New York will receive the sum of $708,795.00; Illinois will receive the sum of $426,641.00; Florida will receive the sum of $327,416.00; Virginia will receive the sum of $227,583.00; Massachusetts will receive the sum of $204,639.00; Nevada will receive the sum of $73,794.00; the District of Columbia will receive the sum of $35,346.00; and Hawaii will receive the sum of $25,734.00.

CA Technologies, Inc., is a Fortune 500 company located in Islandia, New York.  CA Technologies is an independent software company that has a significant global presence, with offices all around the world.  It produces primarily products related to business-to-business mainframe computing and distributed infrastructure applications.

Ms. Shaw filed what is known as a qui tam lawsuit against CA Technologies in the United States District Court for the Eastern District of New York in 2006.   Ms. Shaw worked for the company for several years—from 2003 through 2006.  She was a Technical Sales Specialist and specialized in software product license sales to the United States.  The Complaint alleged that CA Technologies was liable under the federal False Claims Act, as well as various state false claims acts, to the United States, California, Florida, Hawaii, Illinois, Massachusetts, New York, Nevada, Virginia, and the District of Columbia, for fraudulent billing practices.  According to the Complaint, beginning no later than July 2003, CA Technologies defrauded its government customers by processing renewals of software maintenance servicing plans improperly.  CA Technologies renewed the plans as of the date of the renewal order rather than as of the date of the expiration of the current software maintenance plan.  This billing practice created millions of dollars of overbilling, charged the Complaint.  The Complaint details numerous specific examples regarding this improper renewal process, with government clients ranging from the United States Department of Defense to the City of Santa Monica to the Hawaii Department of Public Safety.

The Complaint also alleged that CA Technologies defrauded the United States Department of Defense by encouraging it to purchase software it had already paid for from third-party vendors.  Beginning in 1998, the United States purchased large blocks of software licenses from software manufacturers, including CA Technologies resulting in a substantial inventory of pre-paid software licenses.  When Department of Defense employees inquired to CA Technologies about software needs, rather than informing the Department of Defense employees that the software they were seeking was already purchased as part of the pre-paid inventory, CA Technologies employees directed the Department of Defense to third-party vendors to purchase the identical CA Technologies software.

If you are an employee and find yourself in a situation in which you have raised complaints about practices by your employer and are facing retaliation as a result of the same, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  We have a long history of protecting the rights of whistleblowers.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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United States Supreme Court Hears Oral Arguments on Breadth of Whistleblower Protections of Sarbanes-Oxley Act

On November 12, 2013, the United States Supreme Court heard oral arguments regarding the breadth of whistleblower protections under the Sarbanes-Oxley Act.  The arguments came in the matter of Lawson v. FMR, LLC.  The United States Supreme Court is expected to issue its ruling next spring.  The case arose out of two separate lawsuits filed against FMR and several related companies (the “FMR defendants”) by two of their former employees.  The employer-companies were private companies, but contracted and subcontracted work with publicly-traded companies.

The first case involved Jonathan Zang, who filed a complaint with the Occupational Safety and Health Administration (“OSHA”) in 2005.  It alleged that Mr. Zang had been terminated in response to concerns he voiced about registration statements for certain funds of Fidelity Management & Research Co.  Specifically, Mr. Zang indicated he believed that the registration statements in question violated various securities laws.  OSHA dismissed the complaint, finding that he had not engaged in protected activities. Mr. Zang requested review of the decision in front of an Administrative Law Judge (the “ALJ”).  The ALJ found that Mr. Zang was not covered under the whistleblower protections of the Sarbanes-Oxley Act, as he was an employee of a private, not public, company.  Mr. Zang then filed a lawsuit in the District Court for the United States District Court for the District of Massachusetts.

The other lawsuit was brought by Jackie Hosang Lawson against the FMR defendants, alleging that she had been forced to resign in 2007 for raising concern about the company’s cost accounting practices.  Ms. Lawson filed a complaint with OSHA alleging violations of the whistleblower protection provisions of the Sarbanes-Oxley Act.  Approximately a year later, Ms. Lawson notified OSHA that she intended to file a lawsuit in the District Court for the United States District Court for the District of Massachusetts, which she did.

The FMR defendants sought dismissal of both lawsuits, arguing that the whistleblower protections of the Sarbanes-Oxley Act did not extend to either Mr. Zang or Ms. Lawson.  The FMR defendants argued that the protections did not extend to employees of private companies, even if those private companies are contractors or subcontractors to public companies.  The United States District Court for the District Court of Massachusetts, Honorable Douglas P. Woodlock, addressed the arguments in a combined opinion.  He found that the whistleblower provisions of the Sarbanes-Oxley Act did, in fact, extend to Mr. Zang and Ms. Lawson.  Judge Woodlock limited the extension of the Sarbanes-Oxley Act in such circumstances to reporting violations related to fraud against shareholders.

The FMR defendants appealed the decision to the United States Court of Appeals for the First Circuit.  On February 3, 2012, the First Circuit reversed the decision of Judge Woodlock.  It found that under the circumstances in the cases at hand, the whistleblower protections of the Sarbanes-Oxley Act did not extend to Mr. Zang or Ms. Lawson.  The First Circuit was careful to note that the cases at hand involved public companies affiliated with the private companies wherein those public companies were not involved in directing the retaliatory actions against the private company employees.

On July 30, 2012, Mr. Zang and Ms. Lawson filed a Petition for Writ of Certiorari with the United States Supreme Court, requesting that it review the decision of the United States Court of Appeals for the First Circuit.  On May 20, 2013, the United States Supreme Court granted the Petition for Writ of Certiorari, indicated that it would hear and rule upon the request for review of the decision of the United States Court of Appeals for the First Circuit.

If you are in a retaliatory situation due to having raised concerns about practices by your employer, and you live in Mississippi, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  Our firm has extensive helping individuals obtain the protections to which they are entitled.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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Florida Health Care Fraud Lawsuit Settled

On September 30, 2013, a press release was issued announcing that a lawsuit filed on behalf of the United States against Winter Park Urology Associates, P.A., Radiation Oncology Consultants, P.A., and three of the latter’s physicians – Steven G. Lester, M.D., John D. Looper, M.D., and Maneesh Gossain, M.D. – has been settled.  The qui tam lawsuit was filed by Carlo Santa Ana on May 19, 2010, against the aforementioned defendants in the United States District Court for the Middle District of Florida.  It alleges that they presented false or fraudulent claims for payment to federal healthcare programs and used false records to present these claims.  As alleged, the false and fraudulent claims amounted to more than $20 million.

Winter Park Urology Associates is a physician-owned practice located in Orlando, Florida.  It operates the Orlando Cancer Institute.  Radiation Oncology Consultants, P.A., through three of its physicians—Dr. Lester, Dr. Looper, and Dr. Gossain—supervised the administration and operation of the Orlando Cancer Institute.  From June 2008 through March 2010, Mr. Santa Ana was the Director of Medical Physics for the Orlando Cancer Institute.  Mr. Santa Ana was also Department Manager for the Orlando Cancer Institute from April 2009 through March 2010.  He was terminated by Winter Park Urology Associates in March 2010.

The Complaint alleges that the Orlando Cancer Institute submitted thousands of claims for image-guided radiation therapy and intensity modulated radiation therapy, despite the fact that the therapy was performed without a supervising physician, as required for reimbursement by Medicare.  Specifically, the Complaint sets forth that radiation therapists performed services and read image-guided radiation therapy images without any involvement from a radiation oncologist.  Images were not reviewed by a radiation oncologist until long after treatment was provided, if at all, based on allegations in the Complaint. According to the Complaint, Orlando Cancer Institute also submitted claims for intensity modulated radiation therapy that were not medically necessary.

The Complaint further alleges that Orlando Cancer Institute developed a policy of submitting add-on claims for special procedures, which such procedures were almost never adequately justified.  These procedures included medical radiation physics consultations and special treatment procedures.

In addition, the Complaint claims that Winter Park Urology Associates violated the Florida Patient Self-Referral Act, which prohibits a physician from referring to entities in which the referring physician holds an interest, subject to certain exceptions.   The violations occurred when Winter Park Urology Associates referred patients to the Orlando Cancer Center.  Finally, the Complaint alleges that Winter Park Urology Associates retaliated against Mr. Santa Ana by terminating him due to his complaints about the wrongdoing alleged in the Complaint.

Radiation Oncology Consultants, Dr. Lester, Dr. Looper, and Dr. Gossain were dismissed from the lawsuit as part of the settlement.  Winter Park Urology Associates has agreed to settle the matter, but the financial details of the settlement have not yet been made public.  The United States Department of Justice will have to approve the terms of the settlement agreement before it can be finalized.

If you are an employee and find yourself in a situation in which you have been retaliated against for complaints about practices by your employer, Barrett Law PLLC, can help you understand your rights and the protections to which you may be entitled.  We have a long history of protecting the rights of whistleblowers, and intend to continue protecting the rights of whistleblowers into the future.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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