Big Pharma’s Love Affair with Opioids

Steve W. Berman on Jul. 22, 2014 | 0 comments

I don’t know if it is human nature or a symptom of the increasingly chaotic nature of our lives that allows us to become accustomed – even accepting – of things that would have caused us angst, anger or frustration in years past.

I could list a legion of things that fall into this category – the lack of civility in everything from rush-hour driving behavior to political discourse in Washington, to the now-common use of profanity as a part of civil society.

Most of these things are minor annoyances; we can change the channel when the talking heads begin blathering on Fox News or CNN, we move over to the slow lane on the freeway.

But our acclimation to once-troubling behavior can also be manipulated and used against the public interest. We believe that is exactly what Big Pharma has been doing now for years with opioids.

Let me explain.

Today, we don’t think twice when we hear of a friend or neighbor taking prescription pain medication for a bad back, or for any number of conditions or injuries. Trademarked words like Percocet, Vicodin and Oxycontin are as much a part of the layperson’s medical vocabulary as Tylenol and aspirin were for our parents.

And our perception is borne out by the facts: Opioids have become the most widely prescribed class of drug in the U.S.

But here is the alarming part: Opioids were never intended for use for long-term, chronic pain. Historically, physicians prescribed them for a very narrow window of uses, typically for pain around post-surgery discomfort or other short-lived situations.

So what happened?

In a recent court filing we made on behalf of a group of California counties, we believe five of the world’s largest narcotics manufacturers – Purdue Pharma, Teva Pharmaceutical Industries, Cephalon Inc., Johnson & Johnson, Janssen Pharmaceuticals and Endo Health Solutions Inc. – began a campaign to stack the deck in favor of wider use of opioids.

One tactic was to tout the broader use of opioids to physicians by finding – and hiring – other physicians to write papers and speak at events.

At the same time, the drug companies mounted a campaign encouraging patients, including the elderly, to ask their doctors for the painkillers to treat common conditions such as back pain, arthritis and headaches.

The results are toxic. The National Survey on Drug Use and Health reported that the number of first-time abusers of prescription opioids increased from 628,000 in 1990 to 2.4 million in 2004, that emergency room visits involving prescription opioid abuse increased by 45 percent from 2000 to 2002 and that treatment admissions for primary abuse of prescription opioids increased by 186 percent between 1997 and 2002.

Opioid overdoses now account for more deaths in the U.S. than car crashes, cocaine, heroin and suicides combined.

If you’re finding this a bit hard to stomach, know that this isn’t the first time a company has mounted a campaign of deception with such blatant disregard for the public’s well-being. Think Big Tobacco. It seems like common sense to us now that cigarettes contain harmful chemicals and are wildly addictive, but back when I led my firm’s work on behalf of 13 states against Big Tobacco, we saw these same tactics used to misinform the public.

We beat them then, and I believe we can beat this new incarnation – Big Pharma – today.

At the end of the day, we may not be able to change how people drive, or the amount of venom the politicians spit at one another, but if we are successful with this case, we should be able to slow – or stop – the insidiousness of this scheme. 

IOU: Lawsuit against Government Challenges Actions Following Financial Crisis

Steve W. Berman on Aug. 26, 2013 | 0 comments

In the comedy film “Dumb and Dumber,” the two main characters, played brilliantly by Jim Carey and Jeff Daniels, trek across the country to return a briefcase that they believe was mistakenly left at an airport by a beautiful woman. On the way, they discover that the briefcase is full of cash, and agree that it is important that they return the money. Unbeknownst to them, the money was a ransom for the return of a kidnapping victim, and in the climax of the film, Carey and Daniels’ characters are forced at gunpoint to open the briefcase by the kidnappers. 

Out of the brief case tumbles hundreds of slips of paper, marked simply “I.O.U.” “What is this? Where’s all the money?” asks one of the criminals. “That’s as good as money, sir. Those are I.O.U’s.” 

While this scene is funny, it speaks to a broader point of justice. If you are going to borrow money, you ought to be prepared to pay it back. This is the point enshrined in the takings clause of the 5th amendment of the U.S. Constitution which declares in part, “nor shall private property be taken for public use, without just compensation.” 

In other words, if the government needs to confiscate property for an important public purpose, it must compensate the owner for the loss. In Dumb and Dumber, the characters did not have a particularly persuasive reason to spend the money, but the U.S. government has faced a number of pressing public challenges that required the confiscation of private property. 

For instance, during World War Two, the government acquired more than 20 million acres of land to build defense plants and other essential war facilities. After the war, the government knew that both as a matter of economic necessity and as a matter of national security, we needed to build an interstate highway system connecting the country, coast-to-coast. To facilitate the mammoth undertaking it engaged in more than 750,000 separate takings of private property. 

Examples of the federal government taking property abound. Even NASA benefited from government takings of private land; the Cape Canaveral launch site was originally taken from private ownership in order to help the space race. 

In each of these cases, the government’s actions were an understandable response to an urgent public need, and the individuals whose land was taken were compensated. While every property owner was not perfectly satisfied, the government generally made a good-faith effort to pay owners a fair market value for their property in cold hard cash, rather than vague IOUs. 

This stands in stark contrast to public takings throughout history. Roman emperors, feudal lords, even the British monarchy in colonial America, could take property without just compensation. It was in part due to these experiences that the 5th amendment was added to the Bill of Rights. The principle established by the takings clause is clear; sometimes property must be taken for an important national need, but owners must be fairly compensated for their losses. 

In the midst of the financial crisis of 2008, such a need was made apparent; without quick action, the national economy could collapse. The government took a number of emergency actions, including the now-infamous bailouts of some of the largest financial institutions in the country. But we allege it also engaged in massive public takings under the 5th amendment. 

As the government rushed to loan funds to major financial institutions in order to prevent them from becoming insolvent, it took the opposite tact with two private, shareholder-owned companies, Fannie Mae and Freddie Mac. 

Fannie and Freddie fulfilled a crucial need in the market for mortgages in the United States, buying mortgages and mortgage-backed securities from other financial institutions and guaranteeing them for investors. The companies had originally been established by the government, but had since been privatized, raising capital and issuing stock like any other publically traded company. 

Unlike many other financial institutions, Fannie and Freddie had largely avoided the riskiest subprime loans and mortgage-backed securities built on that debt. However, beginning in 2001, Congress and regulators took steps that encouraged the companies to take on more and more questionable assets, including subprime loans. 

Despite these actions, both companies had less exposure to toxic assets than did other financial institutions. However, as the financial crisis worsened, the government decided to place both companies into conservatorship, effectively nationalizing them. 

In quite possibly the most lopsided loan arrangement of all time, the government would be given senior preferred shares and the right to purchase up to 80 percent of the companies at a price of $.00001 per share. These actions, while perhaps necessary as part of a broader plan to save the global economy, made the common stock held by shareholders effectively worthless overnight. 

One would assume, then, that the government compensated stockholders for their losses. After all, their property was effectively made worthless by the government’s actions, actions that were admittedly necessary to save the economy. However, in this instance, the government did not compensate shareholders, which is why we have now filed a lawsuit on their behalf. 

We think that the government’s actions were effectively a taking under the 5th amendment. Except instead of taking land or physical goods, the government seized financial assets by devaluing the common stock held by investors. Investors have not been compensated for that taking, and have instead been forced to write off nearly their entire investment in Fannie and Freddie as a complete loss. 

We are confident that we will prevail in this case. The constitution is on our side, and we suspect that the government ultimately will agree with us that a stack of IOU slips is not sufficient in this case; real compensation must be given.

HBSS Secures $1.4 Billion Settlement in Toyota SUA Case

Steve W. Berman on Feb. 27, 2013 | 0 comments

In 1935, Austrian physicist Erwin Schrödinger, a contemporary of Albert Einstein, postulated a thought experiment in which a live cat was placed inside a box. The box would be connected to a device that might, or might not, kill the cat, depending on whether or not a single microscopic radioactive particle changed its state.

Schrödinger theorized a complex system involving Geiger counters and a particularly lethal type of acid. Einstein felt the experiment was far too complicated, filling the theoretical box with a pistol, loaded with one bullet, which may or may not fire.

Though it is probably worth asking why these Austrian physicists seem to have such a hatred of cats, Schrodinger was making an interesting point. He was, in a sense, trying to provide a scientific answer to the question, “if a tree falls and no one is there to hear it, does it make a sound?”

You see, a core part of quantum mechanics claims that the smallest microscopic particles do not decide which direction to spin or how to behave until we look at them. Until we look at them, their state is undetermined.

Schrödinger hypothesized that if one could build a machine that would make a cat’s life forfeit based on the movement of a single, small particle, and walked out of the room while the experiment ran, the cat would not technically be alive or dead until someone opened the box and took a look inside.

A similar phenomenon can be found in litigation. Often, when millions of dollars are on the line and the outcome of a case is uncertain, it is not worth taking the all-or-nothing risk of seeing litigation through to the very end. Doing so is like opening Schrödinger’s box; the cat may be alive or it may be dead and the case may be completely viable or the jury may vote an acquittal on all charges.

Sometimes, no matter how many millions of documents are read, no matter how many witnesses are deposed, you just don’t know how a case will end until you open the box and find out. In cases involving millions or even billions of dollars in damages that risk may not be worth taking. When that happens, it is our job, as plaintiffs’ attorneys, to fight tooth-and-nail for our clients to ensure they receive a settlement that recognizes the merit of their claims while avoiding the risk of a complete loss at trial.

We recently had just such a case. Back in 2010, a media firestorm erupted when Toyota owners across the United States reported that their vehicles were accelerating suddenly out of their control. Toyota issued several recalls impacting millions of vehicles, but reports of sudden, unintended acceleration (SUA) continued to flood in.

Many, myself included, speculated that the recalls, which included floor mats and accelerator pedals, failed to address a possible defect in the electronic throttle control system (ETC), the system that links the accelerator pedal to the engine. If such a defect did exist, Toyota’s recalls were not adequately protecting consumers.

Moreover, as reports of accidents continued to pour in, the trade-in and resale values of Toyota vehicles plummeted. Consumers attempting to sell or trade in their vehicles received less than they would have before the alleged defect became public.

We filed a lawsuit on behalf of owners and lessees of those Toyota vehicles, asking for Toyota to compensate them for the reduction in value. Proving our case would require us to demonstrate a defect causing SUA that Toyota had failed to address.

As the case worked its way through the courts, we read millions of internal Toyota documents, attempting to uncover whether Toyota knew, or should have known, about a defect in the ETC system.

At the same time, Congress, the National Highway Traffic Safety Association (NHTSA), and engineers at National Aeronautics and Space Administration (NASA) investigated the issue, questioning Toyota engineers and inspecting vehicles to see if they could replicate the issue and demonstrate a defect in the ETC system. Ultimately, both NHTSA and NASA engineers were unable to reproduce SUA in Toyota vehicles. They concluded that driver error, among other causes, was the most likely explanation for SUA events.

We strongly disagreed with NHTSA and NASA’s findings. Simple driver error could not explain the hundreds of incidents being reported. It also could not explain the number of reports claiming that pushing the brake pedal and shifting to a neutral gear failed to stop vehicles from accelerating out of control.

Still, we knew that with so much evidence and so many witnesses, it would take years before we finally uncovered the truth, and continuing the litigation carried certain risks for the plaintiffs. If the court dismissed the case, or a jury in one of the first cases acquitted Toyota, the plaintiffs might receive nothing.

So, we weighed our options carefully and worked with Toyota to come up with a settlement agreement that would both make Toyota vehicles safer and compensate owners and former owners who realized economic losses when they attempted to sell or trade in their Toyota.

The settlement we agreed to, which must now be approved by the court, does all of that and much more. It includes benefits for the class worth up to $1.4 billion, making it the largest automotive defect settlement in history. It includes $250 million for Toyota owners who sold their cars, another $250 million for Toyota owners whose vehicles are not eligible for a brake-override system and an expanded warranty program for all current owners, lasting up to ten years for certain parts.

Ultimately, we feel that the settlement is fair, and we look forward to working with the court to finalize it. There are those who might have hoped for more, or hoped we could demonstrate conclusively that Toyota vehicles suffered from a SUA defect in a full jury trial. However – at the end of the day we felt like Schrödinger and Einstein; without opening the box we couldn’t be sure what might happen. In a case this complicated, we felt that the risks of litigation were not in the best interests of consumers, especially when we were able to achieve such a generous settlement that will make an immediate and positive difference in the safety of Toyota vehicles.

Toyota Owners Forced to Continue Driving Ticking Time Bombs

Steve Berman on Jun. 1, 2012 | 0 comments

In the critically acclaimed novel Catch-22, a World War II pilot asks his squadron’s doctor about the sanity of another pilot, who continues to fly suicidal missions day after day with no fear of death.

The doctor confirms that the pilot must be insane and therefore should be grounded from any future missions. However, there is a catch. The pilot must ask to be grounded, but “anyone who wants out of combat isn’t really crazy, so I can’t ground him. That’s Catch-22.”

I was recently reminded of Catch-22 when a judge issued a ruling in our case against Toyota. In the case, we allege that a defect in the electronic throttle system and other part failures in most Toyota models cause sudden, unintended acceleration, or SUA, resulting in deadly car wrecks and crashes. We have asked the court to award damages to Toyota owners so that they can replace their defective vehicles and we seek an order requiring Toyota to install a fail-safe mechanism that can prevent SUA.

The judge’s decision uses reasoning right out of the novel. The trial court ruled that Toyota owners in Florida and New York may not sue Toyota until they have personally experienced SUA.

SUA often leads to serious injuries or even death. Like the pilot in Catch-22, the Court’s reasoning seems to be that drivers must continue to risk their lives driving a defective vehicle that is likely to accelerate suddenly out of control at any moment. Only after the car is wrecked and the driver injured can they challenge Toyota for selling them a defective product.

Now that’s a Catch-22.

Between 2000 and 2010, The National Highway Traffic Safety Administration (NHTSA) reported 89 deaths and 57 injuries attributed to unintended acceleration in Toyota vehicles. It’s difficult to understand Judge Selna’s decision in that context. How can we tell Toyota drivers in Florida and New York to roll the dice every time they drive their cars, risking serious injuries and even death? How can one say a car that has a risk of SUA is worth the same as a car that has a much lower risk and has better fail-safe features in the event SUA occurs?

Consider just one story of a driver who experienced SUA. On April 19, 2008, Guadalupe Alberto of Flint, Michigan, drove her 2005 Toyota Camry to work, a routine drive she had taken hundreds of times before.

She had never received a speeding ticket in all of her years of driving, but on that day, Ms. Alberto’s Toyota suddenly accelerated out of control, jumping a curb and flying through the air before crashing into a tree. She died instantly.

According to the Court’s reasoning, Ms. Alberto would have had no legal claim against Toyota until she experienced SUA. In other words, until it was too late.

For its part, Toyota has issued several recalls to “fix” the SUA problem, blaming sticky pedals and defective floor mats, but has denied that there is any defect in the electronic throttle system. All the while internally Toyota has replicated SUA in customers’ cars and acknowledged the cause as “ECM failure” or “ECU failure” or cause “unknown”.

A recent story on CNN’s Anderson Cooper lent additional proof to our theory. CNN’s investigators found an internal document, written in Japanese, which appears to note a SUA problem discovered in a test vehicle during pre-production trials. According to one translation commissioned by CNN, the document notes that the test vehicle experienced “sudden unintended acceleration due to wrong judgment made by the full speed range Adaptive Cruise Control (ACC) System.”

Even more alarming, Toyota did not share this document with the National Highway Traffic Safety Administration (NHTSA), who conducted an official investigation into SUA.

Beyond the immediate impact on Toyota owners in New York and Florida, the court’s decision will set an unfortunate precedent for similar cases in the future.

For instance, a video recently went viral on Youtube showing a 2010 Chrysler Jeep suddenly light on fire. In the video, the driver reacts quickly, swerving off the road to avoid running a red light.

The driver’s video explains that this is a known defect, but Chrysler has failed to respond to the problem. According to the precedent set by Judge Selna’s Toyota decision, Jeep owners who fear for their lives must wait for their cars to light on fire before they can take legal action against Chrysler.

In my view, the decision misses the entire point of our lawsuit. Car owners should not be forced to drive a ticking time bomb and wait until they are seriously injured in an accident. They deserve justice now, including compensation for the replacement of their defective and unsafe vehicles.

We intend to appeal this ruling and we will continue to fight for justice for Toyota owners throughout the United States. You can learn more about this litigation at

Whistleblower Earns $14 Million Reward in Case against Bank of America

Steve Berman on May. 29, 2012 | 0 comments

In 1998, I worked with a number of very talented attorneys general to hold Big Tobacco accountable for the damage it caused to millions of Americans through years of deception, improper marketing and a number of other nefarious tactics. Until this coordinated effort, no one – not attorneys general nor the civil justice system – could lay a glove on Big Tobacco. They had a virtual army of attorneys and lobbyists, and mountains of cash to fund their effort to avoid accountability.

And it worked, for a while.

But thanks in part to a courageous whistleblower, former Brown & Williamson executive Jeffrey Wigand, Big Tobacco finally had its day of reckoning, and eventually agreed to an omnibus settlement of $206 billion – the largest settlement ever at the time.

Mr. Wigand publicly spoke out and said what we all knew, but couldn’t prove – that the tobacco companies knew cigarettes are addictive and lethal. He also explained that companies were using additives known to increase the risk of cancer and increasing the amount of nicotine in order to make them even more addictive.

Yet, in coming forward, Mr. Wigand took a monumental risk. He also paid a price for what he did; he found himself in a series of legal battles and the victim of a smear campaign orchestrated by his former employer. His wife divorced him and his two daughters left with her.

And as he attempted to shine the light of public scrutiny on Big Tobacco, he soon found that light reflected back at him. He had to defend himself and his accusations at every turn, in the media and in the courtroom.

Of course, Mr. Wigand was ultimately vindicated and is now heralded as a hero and a champion of the public interest. Hollywood told his story in the movie “The Insider” starring Al Pacino and Russell Crowe.

His story showcases the risks and rewards that are part of being a whistleblower. David can beat Goliath, but that doesn’t make the prospect of taking on Goliath any less scary. When challenged over big issues, corporations have the power and resources to fight vigorously and delay justice for years.

Still, I think the situation for whistleblowers is improving in this country. There is a renewed sense, driven in part by the disastrous behavior we all saw on Wall Street before the financial crisis, that whistleblowers should play an important role in deterring corporate fraud.

Consider the United States Congress, who took Wall Street’s malfeasance to heart and passed the Dodd-Frank Financial Reform bill, which includes two new whistleblower programs. Under the programs, individuals who report violations of securities or commodities trading and reporting laws may receive up to 30 percent of any fines or penalties the government collects.

Another longstanding law passed during the American Civil War called the False Claims Act protects whistleblowers who report fraud committed against the government. Congress recently strengthened this law to catch more fraud and protect additional whistleblowers. Those who present a valid legal claim and recover the government’s money are entitled to a reward. We represent a whistleblower under the False Claims Act, and like Mr. Wigand, he has fought a long, costly battle against powerful corporate interests.

Our client, a former employee at appraisal company Landsafe named Kyle Lagow, blew the whistle on Countrywide Financial, now owned by Bank of America, for what he believed to be widespread appraisal, appraisal review and underwriting fraud. First, he blew the whistle to the highest levels of the company. When they wouldn’t listen, he filed a lawsuit. He alleged that Countrywide and home developing giant KB Homes, among others, used a number of tactics to inflate the appraised values of homes and set up a sham review process.

Accurate home appraisals are important for many reasons. For one thing, they serve as a check on greedy home developers or bankers hoping to cash in on interest payments from an overvalued mortgage.

They are also very important for the Federal Housing Administration (FHA), a federal agency that helps low- and moderate-income homebuyers afford homes by insuring loans. Under the program, if a house goes into foreclosure, the government steps in, pays the bank the remaining amount due on the mortgage and takes ownership of the property. In order to qualify a loan for FHA endorsement, underwriters must follow strict guidelines, including guidelines about proper appraisals. If appraisals are inaccurate and a loan goes bad, the government is forced to pay an inflated price. This helps people who might otherwise have a hard time affording a home secure a loan, but it goes without saying that the government has to be really careful about what loans they insure.

What Lagow alleged was a pattern of violating the most important rules to qualify for FHA endorsement, including inflating appraisals across the entire country. He claimed that when the real estate market collapsed and homes began to go into foreclosure in record numbers, the government was forced to overpay for the full cost of the mortgages.

Lagow’s first sign that something was deeply wrong at Landsafe and Countrywide came in early 2005, when he had a meeting with the new LandSafe president, Todd Baur, who expressed interest in having Lagow’s team of appraisers work on large multimillion dollar properties. Lagow questioned the decision, noting that such properties require specialized experience and an incredible attention to detail to produce accurate appraisals. He felt that his appraisers simply weren’t ready for such a challenge, but Baur disregarded his concerns and pushed ahead with the project.

This was the first symptom of a much wider problem. What Lagow came to notice at both Landsafe and Countrywide was a culture that disregarded the most important rule of proper appraisals; to be neutral, appraisals must be completely independent of the lending side of the equation.

Instead, Landsafe and Countrywide executives, Lagow alleged, sought to break down the federal regulations that separate appraisers and bankers, creating an environment ripe for corruption. He attested that President Baur instructed Landsafe managers that the appraisal unit needed to change and that its role was to facilitate the closing of loan deals negotiated by Countrywide.

Lagow claimed that he saw the potential for corruption fully realized when a joint venture was announced between KB Homes, one of the nation’s largest home developers, and Countrywide. He recruited appraisers to work on KB Homes’ properties, only to see his staff turned away and told that the homebuilder would decide who would perform appraisals.

Lagow claimed that KB Homes was given the power to turn away any appraiser who refused to certify as accurate whatever inflated price the developer was trying to push on a homebuyer. If you think that sounds like a rigged system, you’re right.

An extreme example of this policy in practice was found in Houston. Lagow alleged that he uncovered a scheme in which only a single appraiser was given every single KB Homes project in the city. That appraiser somehow managed to do more than 400 appraisals per month.

We’ve all heard about robo-signing lenders who claimed to have a handful of workers reviewing thousands and thousands of pages of mortgage paperwork each day. It is hard to believe those workers actually paid very much attention to each case they reviewed, and it is even harder to believe that an individual conducting 400 appraisals in a month could possibly do a full and fair analysis of the properties’ values.

What is even more shocking, but makes perfect sense when you consider KB Homes’ and Countrywide’s motives, is that Lagow claimed this appraiser was paid far more than most appraisers, $450 per appraisal. That sure sounds like a quid pro quo to me: endorse inflated appraisals and be paid an above-market rate for the trouble.

Of course, there were upstanding appraisers who refused to cooperate. As he dug deeper, Lagow claimed he discovered explicit blacklisting of those appraisers whose conscience and professional integrity prevented them from participating in inflating home appraisals.

In 2007, for instance, Lagow claimed that an appraiser he recruited precisely because the appraiser had high ethical standards told Lagow that he had been told if he refused to change his appraisals, he would be no longer assigned to KB Homes properties. Lagow alleged that the appraiser in question refused to sacrifice his integrity, and was ultimately blacklisted not only from KB Homes, but from all Countrywide projects.

Lagow continued to raise these concerns with management, but to no avail. Instead, he was instructed to keep all ethical concerns out of writing.

At the same time, he was fighting a battle to obtain the documents necessary for his appraisers to even do their jobs effectively. He claimed that KB Homes and Countrywide refused to provide final sales documents. By withholding these documents, Lagow’s appraisers were forced to use other, less accurate price listings to determine how much a home had sold for.

This is important, because one of the biggest factors in appraising a home is the answer to the question, “What have comparable homes in the same area sold for recently?” Lagow believed that KB Homes was clandestinely reducing home prices at the 11th hour in order to secure a deal, but reporting the original, higher prices for the public data. This, Lagow claimed, corrupted the data his appraisers were forced to use and encouraged inflated appraisals. Despite repeated requests for the documents, Lagow claimed KB Homes and Countrywide did not provide them.

As Lagow dug deeper and allegedly found more illegal activities, he became more desperate to convince senior executives at the company to hear him out. The more vigorously he raised the alarm, however, the more he was marginalized and his job responsibilities were reduced.

Finally, he was contacted by a senior loan officer, who asked him to “review” appraisals in order to find “missed” value. As far as Lagow was concerned, this was a direct request to participate in a conspiracy to commit fraud. He noted that because no one had given his team the appropriate documents, any analysis would not support a change in the appraisals.

Lagow claimed that this did not stop the scheme. He noticed over the next two years that if an appraisal came in too low for Countrywide and KB Homes’ taste, it would mysteriously disappear from the files. Then, a new appraisal with a higher value would just as mysteriously appear and the loan would go through.

Finally, in absolute desperation, he sent two emails to the CEO of Countrywide, Angelo Mozilo. Shortly after, he was fired, told the company wanted to move “in a different direction.”

Like tobacco whistleblower Jeffrey Wigand, Lagow suffered over the next several years. Unable to find a job and suffering from cancer, his house went into the foreclosure process. His wife and five kids also suffered the punishment for having reported fraud, experiencing poverty and hardship.

Lagow did not give up, however. He contacted our law firm and filed a lawsuit under the False Claims Act. The government has resolved a $1 billion settlement with Bank of America, based in part on Lagow’s claims and evidence.

There is light at the end of the tunnel for Lagow, as he will receive a $14 million reward for his part in the case. The reward is well deserved.

The importance of whistleblowers today cannot be understated. Lagow’s courage, tenacity and willingness to walk through fire to expose wrongdoing are the defining virtues of a good citizen. His sacrifices humble all of us, and should push us to all think more deeply about how we can contribute to the public good.

State Passes New Whistleblower Protection Law

Steve Berman on May. 14, 2012 | 0 comments

A couple of years ago, CBS’ 60 Minutes conducted an investigation into Medicare and Medicaid fraud in Florida. The story included some shocking findings: fraud is rampant, hard to detect and costs taxpayers to the tune of at least $60 billion every year.

One person profiled in the story was former Federal Judge Ed Davis. Davis told 60 Minutes that his Medicare statement showed that the government had been billed to purchase him two artificial arms. Yet, Davis did not need artificial arms; the ones he was born with were still working just fine.

Someone, it seems, used Davis’ personal information to falsely bill Medicare and then pocketed the reimbursement. This scheme, and others like it, is costing taxpayers billions of dollars each year.

Thankfully – the Department of Justice and a number of state legislatures are taking the issue much more seriously than they were a few years ago. Attorney General Eric Holder has increased resources in this area and filed charges against dozens of people in connection with false billing schemes.

In fact, earlier this year, the Justice Department exposed what may be the largest healthcare fraud case of all time. Dr. Jacques Roy of Texas is accused of masterminding a scam that charged Medicare nearly $375 million for home healthcare services that were never requested or delivered.

Medicare is only one part of the equation, however. State Medicaid programs, which are designed to provide low-income and disabled people access to medical care, are also plagued by fraud. The scope of the problem is not fully understood. One official estimate suggested that nearly 8.5 percent of Medicaid claims could be fraudulent.

Washington State has not had the best track record on this issue – largely because the state has not devoted sufficient resources to the problem. Just last June, the state’s Medicaid Fraud Unit was nearly cut from the budget when the legislature failed to pass a new Medicaid fraud bill at the end of the legislative session. This is very disturbing given that the federal government pays for 75 percent of its funding on the condition that the state pays for the remaining 25 percent.

In my view, funding for Medicaid fraud programs should not be a partisan issue. Implemented correctly, these programs recover more money for the state than they cost to run. Given that so much Medicaid fraud goes undetected, the state could be recovering millions more.

One easy way that states have increased their detection and prosecution of Medicaid fraud is through the passage of whistleblower laws that provide rewards for those who come forward with information about fraud. These laws, known as false claims acts because they mirror a federal law of the same name, provide additional tools to state governments to combat fraud, including participation in multistate cases and qui tam provisions which reward whistleblowers.

Washington recently became the 29th state to pass such a law. The bill was passed on a bipartisan basis, 40-9 in the Senate and 56-42 in the House. Governor Gregoire has signed the bill into law, and it will go into effect this June.

The qui tam, or whistleblower provisions, in the law are especially important. Whistleblowers will now be able to file a lawsuit on the state’s behalf. If the state intervenes and takes over the litigation, the whistleblower can receive up to 25 percent of any funds recovered. If the state does not intervene, the whistleblower can continue to prosecute the fraud on their own and qualify for even greater rewards.

The law also provides new protections for whistleblowers, shielding them from retaliation by their employer. This will help encourage more whistleblowers to come forward and tell investigators what they know. Perhaps most importantly, the law trebles, or triples, damages, which should help to deter Medicaid fraud moving forward.

I strongly support this legislation. Over the years, I have worked on a number of cases on behalf of states, municipalities and consumers who have been overcharged or otherwise defrauded by Big Pharma and other healthcare companies.

I have also worked with a number of whistleblowers in the healthcare industry. My law firm prosecuted a whistleblower case against an ambulance company that resulted in the second-largest recovery in that industry’s history. We also worked with a whistleblower who exposed Medicare outlier fraud and helped the government to recover millions of dollars.

We recently settled a lawsuit on behalf of two whistleblowers here in Washington who alleged that Center for Diagnostic Imaging (CDI), a radiology and diagnostic imaging company with locations in seven states, improperly billed the federal government for services without a written order from a physician. A judge also approved the maximum reward for the whistleblowers, 30 percent of the recovery.

My experience in these cases has taught me that whistleblowers should be extremely careful and hire an ethical and effective attorney to prosecute the case. This is a complex area of the law, and whistleblowers need legal counsel that has the resources and expertise needed to take on large defendants who will fight the allegations and likely retaliate against the whistleblower.

Highly skilled legal counsel is especially important for whistleblowers that come forward under the new state law. As I’ve already noted, Washington has not devoted sufficient resources in the past to catching Medicaid fraud. Thus, the state will simply not have the resources to prosecute each and every whistleblower case that comes through its door.

Instead, the state will take the cases that offer the greatest opportunity for a large recovery. Attorneys with a solid understanding of whistleblower law and the healthcare industry will help whistleblowers develop their case and present it to the government.

I strongly suggest that any prospective whistleblowers consult an experienced attorney before taking any action. You can learn more about our whistleblower practice at

Surprise Attack: Capital One's Balance Transfer Program

Steve Berman on Jan. 10, 2012 | 0 comments

On Christmas Day, 1776, with morale at an all-time low, George Washington famously crossed the Delaware River, launching a surprise attack on the British and their German mercenaries in Trenton, New Jersey.

The rout of the British forces and their Hessian mercenaries was a pivotal victory for Washington’s forces, and according to many historical scholars, a pivotal moment in turning the tide in terms of morale and recruiting.

Washington was credited with the victory thanks to his genius in perfectly timing the attack. He crossed the Delaware on Christmas night, and hit Trenton at 8:00 a.m.

The enemy, tired from a long night of celebrating, were not prepared for the sudden and unexpected attack. Washington’s forces quickly won the ensuing battle.

Fast forward 235 years, and I have to wonder if credit-card giant Capital One had the same thing in mind when they came up with their balance-transfer scheme – catch consumers where they weren’t looking and when they least expected a surprise.

I am talking about the Capital One Balance Transfer scheme.

Capital One’s program was offered as a means for consumers to transfer debts from one creditor to another. In principal, this can be advantageous to consumers by helping them to consolidate debts, or even save money by locking in lower interest rates.

Capital One promised cardholders a zero percent Annual Percentage Rate (APR) for the first year after a balance was transferred. At the same time, the company allegedly told its cardholders that when it came to normal purchases on their cards, they could avoid interest payments so long as they paid the balance on time each month.

On the surface, this program sounds appealing to consumers. For instance, students might use it to reduce the compounding interest on their debt for a year.

However, the way the program actually worked in practice made it very unappealing to cardholders.

Suppose a recent college graduate who has $10,000 in student debt decided to transfer that debt to Capital One. Once the debt was transferred, the cardholder’s account reflected two balances. The first balance was the student debt. The second balance, known as the “purchase balance” was the normal credit card debt incurred by using a Capital One card for normal purchases.

Now suppose that after transferring the debt, the cardholder spent $700 over the course of a month, resulting in a $700 purchase balance. The cardholder received a credit card bill and paid $700 to cover the card’s balance and prevent interest charges.

The next month, to the cardholder’s surprise, the credit card bill reflected a $700 reduction in the student loan debt, but no payment on the credit card debt. Instead, the bill showed interest charges on the balance that the cardholder believed they had paid off.

In other words, instead of applying the payments to the credit card, Capital One applied the payment to the larger, interest-free loans, resulting in interest charges. In some cases, these charges may be as high as 13 percent.

This came as a shock to many Capital One cardholders, who must have felt like the British at Trenton; caught completely unaware, despite paying their bill on time.

We believe that Capital One’s program is deceptive and that the company failed to accurately communicate how the program would work to cardholders.

That is why we have filed a class-action lawsuit on behalf of cardholders, alleging that the company violated several consumer protection laws in various states.

Our case will continue to move forward and we hope to force Capital One to pay back cardholders who allege they were deceived by the program.

The lesson for consumers is that you should always ask questions about credit card offers and do your best to read the fine print. If you pay close attention, you can spot some of the more obvious scams.

I sincerely hope that the Consumer Financial Protection Bureau, a new federal agency charged with exposing these scams, will act aggressively in the future.

Unfortunately, though, simply being vigilant is not a foolproof way to avoid scams and credit card companies are adept at exploiting loopholes to bypass regulators. Sometimes, when a credit card company is particularly skilled at deceiving cardholders, legal action may be the only option to recover lost funds.

Thalidomide in America

Posted by Steve Berman on Nov. 2, 2011 | 0 comments

On September 18, 1962, a baby boy was born in the small town of Brownfield, Texas. Immediately after he was born, doctors noted that the boy had serious and disfiguring birth defects. He was missing his right leg, including his foot. He had no fingers on his right hand and his right arm ended above the elbow.

The baby, named Philip Yeatts, has lived his life without the use of his right leg or hand. He persevered and grew into a strong-willed and determined man. In fact, he became a professional racecar driver, using a specially modified car to win a championship in the U.S. Legends Series in 2008.

Its tempting to end Philips’ story there, and honor his courage and determination to overcome his disability. But there is much more to this story. We believe that Philip was not simply victim of poor luck. We think that his birth defects were a preventable tragedy, side effects from a dangerous drug called thalidomide.

Those of us who were alive in the early 1960s remember the tragedy caused by thalidomide. The drug was widely available in Europe, given to pregnant women to ease morning sickness. We now know that the drug caused debilitating birth defects, resulting in thousands of infant deaths and shocking deformations throughout Europe and elsewhere around the world. The pictures Americans saw of thalidomide babies shocked the nation’s collective consciousness, infants with what appeared to be flippers where arms should be, among other severe malformations.

Yet, at the same time the tragedy seemed so far away. The FDA never approved the drug here, so it was never widely used in the U.S., or so we were told. Later, Billy Joel’s song “We Didn’t Start the Fire,” would juxtapose the European tragedy, “children of thalidomide,” with a much more American tragedy, “Starkweather homicide.”

The belief that America avoided the thalidomide tragedy has persisted for nearly 50 years now, but we believe we have discovered evidence that casts doubt on the story. Newly uncovered and translated documents, combined with new medical advances that help us to better understand how thalidomide works, suggests that there may be many victims in the United States that were never identified.

Even worse, our research has uncovered evidence that the thalidomide tragedy was foreseeable and preventable, but due to the greed of a number of drug companies, safety risks were overlooked and covered up.

The origins of thalidomide take us back to post-war Europe, specifically to the early 1950s in Germany. In 1953-54, German pharmaceutical company Chemie Grunenthal synthesized thalidomide for the first time, and subsequently received a German patent to begin producing and distributing the drug. Grunenthal originally considered the drug a panacea, or at least marketed it as such, claiming it could cure everything from the common cold to premature ejaculation.

New documents suggest that on Christmas Day 1956, an earless baby was born to the wife of a Grunenthal employee who had taken thalidomide during pregnancy. Yet, instead of slowing down development and running more tests, the company continued to push ahead. A mere 10 months later, in October 1956, the drug was released for commercial, over-the-counter sale in Germany.

In 1956, the company entered into an agreement with U.S. pharmaceutical company Smith Kline and French (SKF) to begin domestic testing of thalidomide on animals and humans, including pregnant women.

By August 1958, a pregnant woman participating in the SKF trial delivered a malformed baby. Unlike Grunenthal, who decided to move ahead with the drug, SKF declined to market it in the U.S. However, from what we have seen, the company never let the public know about its test results. The failure to disclose test results is no trivial matter; it is possible that if SKF had sounded an alarm bell early, the distribution of thalidomide in the United State and elsewhere might have been slowed, and less people would have been exposed to the drug.

Having failed to convince SKF to distribute the drug, Grunenthal signed a U.S. distribution agreement for thalidomide with the William S. Merrell Company. Merrell began human trials simultaneous with animal trials in February 1959, and expanded the trials to include pregnant women in May 1959, all while conceding that it had no access to any human clinical safety data.

We believe that sometime during 1959, Grunenthal destroyed its testing data. In September 1960, Merrell submitted a New Drug Application (NDA) with the FDA for commercial sale of thalidomide, which Merrell named Kevadon. The proposed label in the application specified that the drug was intended for use by pregnant women.

One month later, Merrell began its “Kevadon Hospital Program,” a series of large-scale “clinical trials” that we believe were nothing more than a marketing effort to pave the way for expected sales of the drug in the United States. Merrell kept disorganized and occasionally nonexistent records of who, where and when Kevadon was distributed and even informed doctors that they did not need to keep records of the “studies” either. Again, the drug was recommended for use treating morning sickness in pregnant women.

As part of this trial, we believe that more than 2.5 million doses of the drug were given to more than 20,000 patients. While those trials ran, the FDA’s Dr. Frances Kelsey repeatedly denied Merrell’s application to sell thalidomide, deeming its testing to be incomplete. She encouraged testing on pregnant animals.

Then, the truth about the drug began to come out. In July 1961, Australian Dr. William McBride suspected that thalidomide was responsible for recent birth-defect cases and contacted Distillers, the Australian distributor and licensee of thalidomide.

On November 26, 1961, German newspaper Welt am Sonntag, published an article revealing physician suspicions that thalidomide was causing malformations in babies. Grunenthal pulled the drug in Germany, but continued to dispute claims that thalidomide was responsible for the defects. Merrell did not pull its NDA, did not recall the drug and only alerted about 10 percent of its clinical investigators of the danger.

Sometime during the first three months of 1962, Jerry Sue Yeatts of Brownfield, Texas, began suffering from violent morning sickness and went to her physician, Dr. Noah Stone, for help. He prescribed a drug for her illness but did not tell her the name. He also performed at least one sonogram but did not share the results with her. Multiple babies born to Dr. Stone during this time period suffered from birth defects and several died.

On March 8, 1962, Merrell finally pulled its NDA. Like Grunenthal, Merrell contested the claim that thalidomide can cause birth defects and sent letters to doctors disputing the evidence against thalidomide.

In June 1962, Merrell’s Director of Medical Research Dr. Carl Bunde testified before Congress that thalidomide was never sold in the U.S., leaving out the fact that 2.5 million doses had been distributed to 20,000 people by 1,200 doctors.

Two months later, SKF President Walter Munns was also called before Congress, where he claimed that SKF’s clinical trial participants had not given birth to any babies with birth defects, a claim that we believe newly uncovered documents prove was a blatant lie intended to cover up SKF’s guilt.

On September 18, 1962, Phillip “Hook” Yeatts was born to Jerry Sue in Brownfield, Texas. He is one victim, we believe, of a silent epidemic that occurred in the United States during the early 1960s as a result of widespread distribution of thalidomide through a marketing program thinly disguised as a clinical trial.

Yeatts was overlooked as a possible victim of thalidomide not only because SKF and Merrell temporarily succeeded, we believe, in covering up the extent to which the drug was distributed in the U.S., but also because new medical advances have changed our understanding of thalidomide victims.

Yeatts’ deformities are mainly unilateral, affecting only the right side of his body. When thalidomide was first being studied and its horrific side effects being assessed, it was thought to be primarily a neurological drug that caused only bilateral injuries – those affecting both sides of the body. Through some very innovative new cancer research, it is now believed by many doctors that the drug’s mechanisms are actually vascular, enabling it to cause unilateral injuries as well. In the original judgment of thalidomide’s damage, anyone with a unilateral injury like Yeatts’ was summarily discounted as a victim.

Yeatts, along with 12 similarly affected plaintiffs, is part of a new lawsuit we have filed in Philadelphia. At trial, we will show that new documents prove that Grunenthal, SKF and Merrell were criminally negligent, ignoring the hazards of thalidomide and keeping the public in the dark.

The worst element of this entire situation is only now coming to light – the fact that hundreds or thousands of people who have struggled with birth defects their entire lives were originally told that they were just unlucky, when in fact they were victims of a senseless, preventable tragedy.

As Billy Joel might have said, we may not have started the fire, but the least we can do is care for those burnt by the flames.

Major Win for Consumer Class in Toyota Case

Posted by Steve Berman on Oct. 14, 2011 | 0 comments

Our case against Toyota, which alleges that the auto giant knew about a defect that causes sudden, unintended acceleration but did not take action immediately to protect consumers, is progressing toward a series of trials.

U.S. District Judge James Selna recently set a date for three bellwether trials in July, 2013 and ordered that Toyota’s motion and discovery practice should be limited to the states of those trials. Toyota’s lawyers were visibly upset at the judge’s decisions.

These bellwether trials will test some of the typical claims and help the parties determine how future cases might be resolved. In this case, the test case will involve a class comprised of Toyota consumers from California and two other states.

Toyota also asked the Court to brief motions to dismiss cases in over 30 other states. Judge Selna observed that just deciding the California motion to dismiss (largely denied) was a complex task and he was not going to devote massive resources to this task. He noted he would rather focus on managing the case toward trial. You could hear the cash flow watcher at Alston & Bird, a firm Toyota has hired to defend them, moan as they lost the opportunity to bill tens of thousands of hours on preparing the motions.

The same is true for depositions of plaintiffs. Toyota vigorously demanded that due process required that Toyota be allowed to depose over 250 plaintiffs. Imagine the billing frenzy on that project. Judge Selna rejected Toyota’s request, noting that Toyota had made no showing of the need for such blunderbuss discovery.

In an ironic twist, Toyota sought to justify the depositions by claiming fact sheets submitted by 80 plaintiffs were false. Each fact sheet indicated the consumer saw Toyota advertising about safety prior to buying a Toyota. Of course they did – Toyota spends billions a year on such advertisements – so that people see them.

But Toyota’s lawyers want to contest that and want to prove those billions are poorly spent – consumers don’t really see the advertisements.

Not only are Toyota’s lawyers claiming Toyota is wasting billions on advertising, but by calling into question the fact sheets, they are now calling the plaintiffs – who bought their product – liars.

Is this the Toyota way? I think not but perhaps the company’s leadership in Japan doesn’t know what the U.S. lawyers are doing.

Bottom line – these rulings are good for the good guys.

College Sports: A New Gilded Age

Posted by Steve Berman on Sep. 27, 2011 | 0 comments

In 1969, Curt Flood, center fielder for the St. Louis Cardinals, was traded to the Philadelphia Phillies. Flood, who was black, knew that the Phillies reportedly had some of the most racist fans in baseball and expressed his concerns to management. At the time, Major League Baseball’s rules tied the player to the team; he had to move where management sent him or not play at all.

Flood sent a letter to then Baseball Commissioner Bowie Kuhn, saying, “I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States.”

These are strong words, but to many in professional baseball at the time, the rules tying a player to his team sounded an awful lot like slavery; players were bought and sold as a commodity.

Flood sued and took his case all the way to the U.S. Supreme Court. The court ruled against him, but the case set the stage for future negotiations that gave players the right to contract with any team they wished.

Recently, I saw a fascinating article in The Atlantic that reminded me of Curt Flood. Taylor Branch, a noted Civil Rights historian, wrote a piece titled “The Shame of College Sports.” in which he exposes some of the scandals and hypocrisies in college sports.

Many of the injustices that Flood and others succeeded in ending pale in comparison to the scandals still ongoing in college sports.

The worst of these scandals, which threatens to topple the NCAA, is that the organization collects millions upon millions in revenue each year, profits earned off the back of student-athletes. Those student athletes are plastered with corporate logos and sold to the public, but they are not paid for their services.

Branch stops just short of calling this system slavery, but he does conclude that “to survey the scene – corporations and universities enriching themselves on the backs of uncompensated young men … is to catch an unmistakable whiff of the plantation.”

I don’t think there is a moral equivalence between the NCAA and slaveholders, but the conditions for student athletes today certainly compare to another time period in American history; the gilded age. Throughout the industrial revolution and especially during the last 30 years of the 19th century, American workers found themselves slaves in all but one sense; they at least had a theoretical option to leave the job site and look for work elsewhere.

Of course, in practice, the decreased demand for unskilled labor brought about by automation meant that workers had no other option but to accept long work hours and unsafe working conditions in exchange for a low, unlivable wage.

If workers did strike, they could be assured that strikebreakers would be brought in immediately, sometimes with the support of the government. Jay Gould, a railroad owner and one of the richest businessmen in the second half of the 19th century, once said after bringing in strikebreakers, “I can hire one half of the working class to kill the other half.”

You probably won’t hear NCAA executives talking like that about student athletes, but the systems share many similarities.

Consider one of the first reforms passed in the wake of the worst abuses: workers’ compensation. During the industrial revolution, workers routinely found themselves in unsafe working conditions. They operated hazardous machinery in factories and breathed in toxic dust in mines. Cutthroat factory owners responded to injuries by firing workers and replacing them.

Today, high school recruits choose which college to attend, at least partially, based on that school’s scholarship offer. For lower- or middle-class athletes, the prospect of a scholarship is a dream come true, allowing them to earn a degree they otherwise might be unable to afford.

Yet, these student athletes, who the NCAA constantly reminds us are students first and athletes second, are forced to give up their scholarships when injured on the field.

We are currently litigating a case on behalf of a young man named Joseph Agnew. A highly sought-after high school football prospect from Texas, Agnew was courted by several top-tier Division I schools. He ultimately decided to accept a full-ride scholarship from Rice University.

We allege that during his sophomore season with Rice, Agnew sustained shoulder and ankle injuries on the field, and, as a result, his scholarship was revoked. Our case on behalf of Agnew is still working its way through the courts.

The way student athletes are compensated also bears a striking resemblance to the gilded age. One could draw a strong comparison between scholarships and the “company money” given to workers in some industrial towns.

Instead of being paid real wages, workers were often given company money, good only for buying goods and services from a company store. This allowed scrupulous robber barons to avoid paying workers a real wage and created a closed loop that allows them to profit again, selling workers goods at inflated prices.

Consider the scholarships that are given to student athletes today. Scholarships can only be used to pay for tuition at the institution offering the scholarship. Just like in company towns during the gilded age, the employer, or in this case, the university, profits without ever having to pay a real wage.

This practice illuminates the greatest problem with the NCAA today, the massive discrepancy between what student athletes earn for their work in the form of scholarships and what their services are worth.

By any estimation, the talents of student athletes are worth millions to the NCAA and its member universities. Revenue rolls in continuously from lucrative television deals, sponsorships, merchandising and even video game licensing.

That last revenue source is especially troubling, because students’ likenesses were featured in the games. A few years ago, we filed a lawsuit on behalf of a former starting Arizona State quarterback named Sam Keller, who alleged that the NCAA violated its own bylaws by conspiring with a video game company to use students’ likenesses, making millions off students who were not compensated.

Meanwhile, at the professional level, the NFL Players’ Association is paid $35 million each year for the right to show players’ likenesses in NFL video games.

All of these injustices demonstrate a system in serious need of reform. Student athletes have been made to suffer under this system for far too long.

I am hopeful, though, that change is coming. I believe that the NCAA will be forced by the outcry from politicians, educators and the public to reform its operations in the coming years.

Such reform will come not a minute too soon for thousands of student athletes, who deserve fair treatment and compensation for the services they provide to their schools.

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