FROM: U.S. NATIONAL LABOR RELATIONS BOARD
December 28, 2012
The National Labor Relations Board has ruled that, in considering whether an employer is obligated to provide witness statements to a union representing an employee concerning discipline, the Board must balance the confidentiality interests of the employer against the union’s need for the information.
The decision in American Baptist Homes of the West d/b/a Piedmont Gardens overrules a 1978 Board decision, Anheuser-Busch, Inc., 237 NLRB 982, which established a categorical exemption for witness statements in such cases. In Piedmont, The Acting General Counsel and the charging party argued that the bright-line rule established in 1978 was "inappropriate", and the Board agreed, finding it should instead apply a balancing test articulated by the Supreme Court in 1979, in Detroit Edison Co. v NLRB, 440 U.S. 301.
The case involves a continuing care facility in Oakland, California, where statements by two witnesses alleging that a certified nursing assistant was asleep on the job resulted in that person’s termination. The union representing employees at the facility, SEIU, United Healthcare Workers-West, asked for information used in the termination, including witness statements. The employer refused.
In its decision, the Board noted that the National Labor Relations Act imposes on an employer a "general obligation" to furnish a union with relevant information necessary to perform its duties. However, under Detroit Edison, the Board must balance that need against "any legitimate and substantial confidentiality interests established by the employer." The Board discussed that balance in the decision. Also, it decided not to apply the rule retroactively; therefore, Piedmont and other pending cases are being decided under Anheuser-Busch.
The Board asked for briefing on a similar question in a decision in Hawaii Tribune Herald issued March 2011. In its Dec. 14, 2012 supplemental decision, the Board found it unnecessary to address the issue of overruling Anheuser-Busch because it found that the witness statement in the case was not covered by that decision.
Thursday, January 3, 2013
Wednesday, January 2, 2013
ATTORNEY GENERAL HOLDER WELCOMES NEW ASSISTANT AG FOR ANTTRUST DIVISION
FROM: U.S. DEPARTMENT OF JUSTICE
Sunday, December 30, 2012
Attorney General Eric Holder Welcomes Bill Baer as Assistant Attorney General for the Antitrust Division
Attorney General Eric Holder today welcomed the confirmation of Bill Baer as the Department of Justice’s Assistant Attorney General for the Antitrust Division.
"Bill is a highly-skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better quality products and services," said Attorney General Holder. "I have no doubt that he will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws."
Since January 2000, Baer was a partner and head of Arnold & Porter LLP’s Antitrust Practice Group in Washington, D.C. Baer’s practice included providing counsel on a broad range of antitrust and consumer protection issues, including international cartel investigations and merger and acquisition reviews in the United States and the European Commission. He has extensive antitrust experience in various industries, including high tech, intellectual property, communications and health care. Baer also served as a partner at the firm from 1983 to 1995 and as an associate from 1980 to 1983. During that time, Baer specialized in complex civil and criminal antitrust litigation.
From April 1995 to October 1999, Baer was the Federal Trade Commission’s (FTC) Director of the Bureau of Competition. During that time, the FTC achieved significant enforcement successes, including blocking anticompetitive mergers involving two major office supply stores and of the four leading drug wholesalers. Under his leadership, the commission also successfully challenged exclusionary practices in a variety of industries, including toys, high tech and the leading brand name and generic drug manufacturers. From 1975 to 1980, Baer also served in other positions at the FTC, including Assistant General Counsel for Legislation & Congressional Relations, Assistant to Chairman Michael Pertschuk, and as a trial attorney and Assistant to the Director of the Bureau of Consumer Protection.
Baer is a member of the American Bar Association’s Antitrust Section. He has lectured in the United States and around the world on various antitrust and consumer protection issues.
Baer received his J.D. from Stanford Law School in 1975, and served as editor of Stanford’s Law Review. He received his B.A. from Lawrence University in 1972 where he graduated Cum Laude and Phi Beta Kappa.
Sunday, December 30, 2012
Attorney General Eric Holder Welcomes Bill Baer as Assistant Attorney General for the Antitrust Division
Attorney General Eric Holder today welcomed the confirmation of Bill Baer as the Department of Justice’s Assistant Attorney General for the Antitrust Division.
"Bill is a highly-skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better quality products and services," said Attorney General Holder. "I have no doubt that he will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws."
Since January 2000, Baer was a partner and head of Arnold & Porter LLP’s Antitrust Practice Group in Washington, D.C. Baer’s practice included providing counsel on a broad range of antitrust and consumer protection issues, including international cartel investigations and merger and acquisition reviews in the United States and the European Commission. He has extensive antitrust experience in various industries, including high tech, intellectual property, communications and health care. Baer also served as a partner at the firm from 1983 to 1995 and as an associate from 1980 to 1983. During that time, Baer specialized in complex civil and criminal antitrust litigation.
From April 1995 to October 1999, Baer was the Federal Trade Commission’s (FTC) Director of the Bureau of Competition. During that time, the FTC achieved significant enforcement successes, including blocking anticompetitive mergers involving two major office supply stores and of the four leading drug wholesalers. Under his leadership, the commission also successfully challenged exclusionary practices in a variety of industries, including toys, high tech and the leading brand name and generic drug manufacturers. From 1975 to 1980, Baer also served in other positions at the FTC, including Assistant General Counsel for Legislation & Congressional Relations, Assistant to Chairman Michael Pertschuk, and as a trial attorney and Assistant to the Director of the Bureau of Consumer Protection.
Baer is a member of the American Bar Association’s Antitrust Section. He has lectured in the United States and around the world on various antitrust and consumer protection issues.
Baer received his J.D. from Stanford Law School in 1975, and served as editor of Stanford’s Law Review. He received his B.A. from Lawrence University in 1972 where he graduated Cum Laude and Phi Beta Kappa.
Monday, December 31, 2012
MINE SAFETY AND HEALTH ADMINISTRATION ISSUES CITATIONS DURING COAL MINE INSPECTIONS
FROM: U.S. DEPARTMENT OF LABOR
MSHA announces results of November impact inspections
ARLINGTON, Va. — The U.S. Department of Labor's Mine Mine Safety and Health Administration today announced that federal inspectors issued 285 citations, 11 orders and two safeguards during special impact inspections conducted at nine coal mines and seven metal/nonmetal mines last month.
The monthly inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns. These matters include high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions and inadequate ventilation; and respirable dust.
For example, MSHA conducted an impact inspection at TRC Mining Corp. #2 mine in Letcher County, Ky., on Nov. 27. Enforcement personnel issued 23 citations and seven orders, including five unwarrantable failure orders and two failure-to-abate orders for previously issued citations. The orders closed the entire underground portion of the mine.
Subsequent to this inspection, the mine operator changed the mine status to non-producing, with four miners working one shift per day. The operator also submitted a plan to remove equipment from the mine on Dec. 7 and to have the removal completed by Jan. 1, 2013. This was the third impact inspection at this mine.
Five unwarrantable failure orders were issued for failure to follow the approved ventilation plan, failure to properly maintain and repair mine seals, and failure to conduct adequate pre-shift examinations.
The operator's approved ventilation plan on the mechanized mining unit stipulates the installation of a line curtain within 14 feet of each working face with a minimum air quantity in all 10 entries. Mining was underway when inspectors arrived to find either no line curtain where required or line curtains in excess of the required 14 feet; at one point a line curtain was installed 35 feet from the face. No air movement could be detected behind the curtains in four entries, and they did not extend into the last open cross-cut to maintain the necessary minimum air quantity. The operator also did not properly maintain the water spray system — provided for the belt drive transfer point — in an operable condition. At the time of the inspection, coal was running on the belt line at this location. The water supply had been turned off at the cutoff valve (where the branch line connects to the main water line).
The mine also was cited for violations of annual retraining requirements, inadequate roof support, no warning devices at the end of permanent roof support, blocked personnel doors along each side of the #1 beltline, pre-shift examinations not recorded, failure to maintain the primary intake escape way, accumulations of combustible material in areas of the mine, and improperly maintained mining and electrical equipment and fire suppression systems.
"We continue to identify operators who have not gotten the message," said Joseph A. Main, assistant secretary of labor for mine safety and health. "Exposure to harmful levels of respirable dust is unacceptable. Not conducting adequate examinations is unacceptable. Miners deserve better."
Also last month, MSHA conducted an impact inspection at the BHP Copper Inc., Pinto Valley Operation in Gila County, Ariz., where a miner was fatally injured in a fall in September. Federal inspectors issued 40 citations and 2 orders during the Nov. 6-21 inspection.
Inspectors issued two unwarrantable failure orders during this inspection, one for failure to provide barricades or signs warning miners of fall hazard at the North Mine Pit, Castle Dome building. This standard has been cited five times in the past two years. A second such order was issued for not providing a barricade, railing, or barrier to prevent miners from over-traveling a steep, uneven, rocky dropoff located south of the Rectifier Building.
Hazardous conditions resulted in six citations for damaged electrical conductors, exposing miners to electrical shock . This hazardous condition has been cited 14 times in the past two years at this mine. Five citations were issued for failure to conduct continuity and resistance testing of the grounding system on power cords, power strips, power supplies, and a portable band saw, exposing miner to possible electrical shock hazards. This standard has been cited 14 times in the past two years at this mine. Four citations were issued for improper storage of supplies, parts and materials, exposing miners to slip, trip, fall and fall of material hazards. This standard has been cited eight times in the past two years at this mine.
Four citations were issued because high-pressure hoses located at the shop bay, electrician shop, primary crusher and secondary crusher building were not equipped with safety chains or locking devices to prevent a connection failure, creating the potential of a violent hose-whipping action if a hose came apart. This standard was cited one time in the past two years.
Since April 2010, MSHA has conducted 539 impact inspections and issued 9,445 citations, 900 orders and 40 safeguards.
Editor's note: A spreadsheet containing the results of impact inspections in November 2012 accompanies this news release.
MSHA announces results of November impact inspections
ARLINGTON, Va. — The U.S. Department of Labor's Mine Mine Safety and Health Administration today announced that federal inspectors issued 285 citations, 11 orders and two safeguards during special impact inspections conducted at nine coal mines and seven metal/nonmetal mines last month.
The monthly inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns. These matters include high numbers of violations or closure orders; frequent hazard complaints or hotline calls; plan compliance issues; inadequate workplace examinations; a high number of accidents, injuries or illnesses; fatalities; adverse conditions such as increased methane liberation, faulty roof conditions and inadequate ventilation; and respirable dust.
For example, MSHA conducted an impact inspection at TRC Mining Corp. #2 mine in Letcher County, Ky., on Nov. 27. Enforcement personnel issued 23 citations and seven orders, including five unwarrantable failure orders and two failure-to-abate orders for previously issued citations. The orders closed the entire underground portion of the mine.
Subsequent to this inspection, the mine operator changed the mine status to non-producing, with four miners working one shift per day. The operator also submitted a plan to remove equipment from the mine on Dec. 7 and to have the removal completed by Jan. 1, 2013. This was the third impact inspection at this mine.
Five unwarrantable failure orders were issued for failure to follow the approved ventilation plan, failure to properly maintain and repair mine seals, and failure to conduct adequate pre-shift examinations.
The operator's approved ventilation plan on the mechanized mining unit stipulates the installation of a line curtain within 14 feet of each working face with a minimum air quantity in all 10 entries. Mining was underway when inspectors arrived to find either no line curtain where required or line curtains in excess of the required 14 feet; at one point a line curtain was installed 35 feet from the face. No air movement could be detected behind the curtains in four entries, and they did not extend into the last open cross-cut to maintain the necessary minimum air quantity. The operator also did not properly maintain the water spray system — provided for the belt drive transfer point — in an operable condition. At the time of the inspection, coal was running on the belt line at this location. The water supply had been turned off at the cutoff valve (where the branch line connects to the main water line).
The mine also was cited for violations of annual retraining requirements, inadequate roof support, no warning devices at the end of permanent roof support, blocked personnel doors along each side of the #1 beltline, pre-shift examinations not recorded, failure to maintain the primary intake escape way, accumulations of combustible material in areas of the mine, and improperly maintained mining and electrical equipment and fire suppression systems.
"We continue to identify operators who have not gotten the message," said Joseph A. Main, assistant secretary of labor for mine safety and health. "Exposure to harmful levels of respirable dust is unacceptable. Not conducting adequate examinations is unacceptable. Miners deserve better."
Also last month, MSHA conducted an impact inspection at the BHP Copper Inc., Pinto Valley Operation in Gila County, Ariz., where a miner was fatally injured in a fall in September. Federal inspectors issued 40 citations and 2 orders during the Nov. 6-21 inspection.
Inspectors issued two unwarrantable failure orders during this inspection, one for failure to provide barricades or signs warning miners of fall hazard at the North Mine Pit, Castle Dome building. This standard has been cited five times in the past two years. A second such order was issued for not providing a barricade, railing, or barrier to prevent miners from over-traveling a steep, uneven, rocky dropoff located south of the Rectifier Building.
Hazardous conditions resulted in six citations for damaged electrical conductors, exposing miners to electrical shock . This hazardous condition has been cited 14 times in the past two years at this mine. Five citations were issued for failure to conduct continuity and resistance testing of the grounding system on power cords, power strips, power supplies, and a portable band saw, exposing miner to possible electrical shock hazards. This standard has been cited 14 times in the past two years at this mine. Four citations were issued for improper storage of supplies, parts and materials, exposing miners to slip, trip, fall and fall of material hazards. This standard has been cited eight times in the past two years at this mine.
Four citations were issued because high-pressure hoses located at the shop bay, electrician shop, primary crusher and secondary crusher building were not equipped with safety chains or locking devices to prevent a connection failure, creating the potential of a violent hose-whipping action if a hose came apart. This standard was cited one time in the past two years.
Since April 2010, MSHA has conducted 539 impact inspections and issued 9,445 citations, 900 orders and 40 safeguards.
Editor's note: A spreadsheet containing the results of impact inspections in November 2012 accompanies this news release.
Sunday, December 30, 2012
PHARMA COMPANY ACCUSED OF GIVING KICKBACKS TO DOCTORS
FROM: U.S. DEPARTMENT OF JUSTICE
Thursday, December 27, 2012
Victory Pharma Inc. of San Diego Pays $11.4 Million to Resolve Kickback Allegations in Connection with Promotion of Its Drugs
Victory Pharma Inc., a specialty pharmaceutical company headquartered in San Diego, has agreed to pay $11,420,743 to resolve federal civil and criminal liability arising from its marketing of the pharmaceutical products Naprelan, Xodol, Fexmid and Dolgic, the Justice Department announced today. Under the agreement announced today, Victory entered into a deferred prosecution agreement and paid a criminal forfeiture of $1.4 million to resolve federal Ant-Kickback Statute allegations, and paid $9,938,310 to resolve False Claims Act allegations.
The settlement resolves allegations that Victory engaged in a scheme to promote its drugs by paying kickbacks to doctors to induce them to write prescriptions for Victory’s products, including prescriptions for patients covered by Medicare and other federal health insurance programs. The kickbacks included tickets to professional and collegiate sporting events; tickets to concerts and plays; spa outings; golf and ski outings; dinners at expensive restaurants; and numerous other out-of-office events. Victory also encouraged its sales representatives to schedule paid "preceptorships," which involved sales representatives "shadowing" doctors in their offices. The settlement also resolves allegations that Victory improperly used these preceptorships to induce doctors to prescribe Victory’s products.
"Kickback schemes undermine the integrity of medical decisions, subvert the health marketplace and waste taxpayer dollars," said Stuart F. Delery, Principal Deputy Assistant Attorney General for the Civil Division. "We will continue to hold accountable those who refuse to play by the rules and provide illegal incentives to influence the decision making of health care providers."
"This resolution underscores the need for physicians to make treatment decisions based on their own independent medical judgment, without being influenced by kickbacks or other improper benefits," said Laura E. Duffy, U.S. Attorney for the Southern District of California. "Protecting taxpayers from health care fraud is a priority of this office. We will continue to work closely with our investigative partners in taking both criminal and civil measures to combat health care fraud."
The settlement resolves a False Claims Act lawsuit filed in the Southern District of California by Chad Miller, a former sales representative for Victory. The whistleblower, or qui tam, provisions of the False Claims Act permit the whistleblower (or relator) to obtain a portion of the proceeds obtained by the federal government. As part of today’s resolution, Mr. Miller will receive $1.7 million.
"Patients expect health care providers to be concerned only with patients’ best medical interests," said Glenn R. Ferry, Special Agent in Charge for the U.S. Department of Health and Human Services Office of Inspector General Los Angeles region. "Financial kickbacks betray that patient trust, and taxpayers’ expectation that federal and state health dollars be put only to the wisest use."
FBI Special Agent in Charge Daphne Hearn commented, "Many laws of this nation are put in place to protect our citizens from corrupt practices that may endanger our health and safety. When individuals or businesses operate outside of the fence in order to turn a bigger profit the FBI will pursue them in the justice system."
Chris Hendrickson, Special Agent in Charge, Western Field Office, Defense Criminal Investigative Service, stated: "The Department of Defense is committed to its partnership with the Department of Justice and other federal and state enforcement agencies to aggressively pursue those who take advantage of taxpayer-funded health care systems for illicit gain. Doctors providing services to our military members and their families should be free from undue influence in prescribing medicines and other care decisions, and DCIS will act swiftly against those who engage in these illegal and unethical acts."
This settlement is the result of a coordinated effort by the Department of Justice, Civil Division, Commercial Litigation Branch; the U.S. Attorney’s Office for the Southern District of California; the FBI; and the Offices of Inspectors General for Health and Human Services, the Department of Defense, the Department of Labor, the U.S. Postal Service, the Veteran’s Administration, and the Office of Personnel Management.
This resolution is part of the government’s emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009. The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover $10.1 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department's total recoveries in False Claims Act cases since January 2009 are over $13.9 billion.
Thursday, December 27, 2012
Victory Pharma Inc. of San Diego Pays $11.4 Million to Resolve Kickback Allegations in Connection with Promotion of Its Drugs
Victory Pharma Inc., a specialty pharmaceutical company headquartered in San Diego, has agreed to pay $11,420,743 to resolve federal civil and criminal liability arising from its marketing of the pharmaceutical products Naprelan, Xodol, Fexmid and Dolgic, the Justice Department announced today. Under the agreement announced today, Victory entered into a deferred prosecution agreement and paid a criminal forfeiture of $1.4 million to resolve federal Ant-Kickback Statute allegations, and paid $9,938,310 to resolve False Claims Act allegations.
The settlement resolves allegations that Victory engaged in a scheme to promote its drugs by paying kickbacks to doctors to induce them to write prescriptions for Victory’s products, including prescriptions for patients covered by Medicare and other federal health insurance programs. The kickbacks included tickets to professional and collegiate sporting events; tickets to concerts and plays; spa outings; golf and ski outings; dinners at expensive restaurants; and numerous other out-of-office events. Victory also encouraged its sales representatives to schedule paid "preceptorships," which involved sales representatives "shadowing" doctors in their offices. The settlement also resolves allegations that Victory improperly used these preceptorships to induce doctors to prescribe Victory’s products.
"Kickback schemes undermine the integrity of medical decisions, subvert the health marketplace and waste taxpayer dollars," said Stuart F. Delery, Principal Deputy Assistant Attorney General for the Civil Division. "We will continue to hold accountable those who refuse to play by the rules and provide illegal incentives to influence the decision making of health care providers."
"This resolution underscores the need for physicians to make treatment decisions based on their own independent medical judgment, without being influenced by kickbacks or other improper benefits," said Laura E. Duffy, U.S. Attorney for the Southern District of California. "Protecting taxpayers from health care fraud is a priority of this office. We will continue to work closely with our investigative partners in taking both criminal and civil measures to combat health care fraud."
The settlement resolves a False Claims Act lawsuit filed in the Southern District of California by Chad Miller, a former sales representative for Victory. The whistleblower, or qui tam, provisions of the False Claims Act permit the whistleblower (or relator) to obtain a portion of the proceeds obtained by the federal government. As part of today’s resolution, Mr. Miller will receive $1.7 million.
"Patients expect health care providers to be concerned only with patients’ best medical interests," said Glenn R. Ferry, Special Agent in Charge for the U.S. Department of Health and Human Services Office of Inspector General Los Angeles region. "Financial kickbacks betray that patient trust, and taxpayers’ expectation that federal and state health dollars be put only to the wisest use."
FBI Special Agent in Charge Daphne Hearn commented, "Many laws of this nation are put in place to protect our citizens from corrupt practices that may endanger our health and safety. When individuals or businesses operate outside of the fence in order to turn a bigger profit the FBI will pursue them in the justice system."
Chris Hendrickson, Special Agent in Charge, Western Field Office, Defense Criminal Investigative Service, stated: "The Department of Defense is committed to its partnership with the Department of Justice and other federal and state enforcement agencies to aggressively pursue those who take advantage of taxpayer-funded health care systems for illicit gain. Doctors providing services to our military members and their families should be free from undue influence in prescribing medicines and other care decisions, and DCIS will act swiftly against those who engage in these illegal and unethical acts."
This settlement is the result of a coordinated effort by the Department of Justice, Civil Division, Commercial Litigation Branch; the U.S. Attorney’s Office for the Southern District of California; the FBI; and the Offices of Inspectors General for Health and Human Services, the Department of Defense, the Department of Labor, the U.S. Postal Service, the Veteran’s Administration, and the Office of Personnel Management.
This resolution is part of the government’s emphasis on combating health care fraud and another step for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009. The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover $10.1 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department's total recoveries in False Claims Act cases since January 2009 are over $13.9 billion.
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