Starrs Mihm LLP Legal Blog

Whistleblower’s False Claims Act Lawsuit Results in $6.3 Million Settlement by Denver Health for Medicare and Medicaid Patient Misclassification
01/06/2012

Documents from the recently unsealed case of U.S. ex rel Curren v. Denver Health Medical Center et al. reveal that Denver Health has agreed to a $6.3 million settlement with the federal government.  This settlement will resolve claims alleging that Denver Health inappropriately classified patients as receiving “inpatient” care in order to receive higher Medicare and Medicaid payments. Whistleblower Joanne Curren will receive $818,000 as a result of the federal government’s settlement with Denver Health.  Ms. Curren was an accountant who noticed the inappropriate classifications and payments and reported these issues internally to her superiors.  Rather than remedying the inappropriate classification and self-reporting the overpayments to the government, Denver Health terminated Ms. Curren.  Ms. Curren’s Complaint asserted False Claims Act (FCA) claims for fraudulent Medicare and Medicaid payments, as well as a claim under the FCA for retaliation.  The FCA allows individuals to act as “relators” in claims against corporations that defraud the government, and provides substantial monetary incentives in the form of a percentage of the settlement or judgment.  The FCA also provides protection for whistleblowers, such as Ms. Curren, who engage in activity in furtherance of a FCA claim, essentially barring an employer from retaliating against an employee for pursuing a FCA claim.  Individuals who know of a violation of the FCA or have been retaliated against for reporting their employer’s fraud, internally or externally, should contact the experienced employment law team at Starrs Mihm LLP immediately to discuss their potential claims. 

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Seventh Circuit Permits Whistleblower’s RICO Claims Based on SOX Violation to Go Forward
11/12/2011

In an opinion that provides new ammunition for whistleblowers, the U.S. Court of Appeals for the Seventh Circuit permitted Michael DeGuelle’s claim for retaliation under the Racketeer Influenced and Corrupt Organizations Act (RICO) to continue.  According to his Complaint, Mr. DeGuelle had previously blown the whistle internally on tax law violations by his employer S.C. Johnson & Son, Inc., before he filed a claim under the Sarbanes-Oxley Act (SOX) with the Department of Labor.  Subsequent to this filing, Mr. DeGuelle was terminated in apparent retaliation for his SOX filing and whistleblowing activities.  Mr. DeGuelle filed a lawsuit alleging various state and federal claims.  Two of Mr. DeGuelle’s claims alleged that his former employer violated the federal RICO statutes based upon a pattern of racketeering activity, which includes violation of § 1513 of SOX.  Under this section of SOX, it is a crime to “knowlingly, with intent to retaliate, take[] any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense[.]” 18 U.S.C. 1513(e).   The Seventh Circuit stated that “[t]he language of § 1513(e) and logic imply that retaliatory actions always occur after a whistleblower reports others' wrongdoing,” and consequently the retaliation for such whistleblowing could be considered  part of a scheme to prevent disclosure, and thus a proper basis for a RICO claim.  This ruling permits whistleblowers who file a complaint under SOX and are retaliated against to take advantage of the increased damages provisions and attorney fees provisions of the federal RICO statutes.  Current or former employees who have blown the whistle against their employers, or who are contemplating blowing the whistle, should contact Starrs Mihm LLP immediately to discuss their options.

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Fired for Facebook Posts: Social Media Postings May Constitute Protected “Concerted Activity”
12/13/2011

Under a series of recent decisions by the National Labor Relations Board (NLRB), employees who are retaliated against for posting comments on social media websites regarding work conditions may be protected by Sections 7 and 8 of the National Labor Relations Act.  Under these sections employees have the right to engage in concerted activity for the purpose of “mutual aid or protection,” regarding work conditions, and employers cannot retaliate against employees for exercising such rights.  This protection applies regardless of whether the employees are unionized or not.  In one particular case an employee called her boss a “scumbag” on her Facebook page after she had been reprimanded about a customer complaint, which drew various positive responses from her co-workers.  Such activity was found by the NLRB to be protected activity, as it concerned the conditions of the employee’s employment and was joined in by other employees.  The real issue with such postings is usually whether the posting is actually a comment regarding work conditions, or whether it strays into the unprotected area of “opprobrious” comments.  “Opprobrious” comments are often characterized as mere gripes and sudden outbursts against management.  However, regardless of the details, the NLRB’s recent decisions represent a shift in application of the decades old protections for concerted activity to a modern realm of organization and communication.  Facebook, Twitter, LinkedIn and other social media websites are the newest arenas for collective action of all sorts.  One need not look further than the recent Occupy movement and the revolutions across the Arab world for confirmation of this.  Thus it is not surprising that the NLRB would defend those that engage in protected activity in these arenas from illegal employment actions.  Individuals who have been terminated or otherwise retaliated against for work related postings on social media websites should contact Starrs Mihm LLP to discuss their potential claims. 

employment retaliation, free speech, NLRB, protected activity, retaliation, social media
EEOC TO DO MORE WITH LESS
11/22/2011

On November 18, 2011, President Obama signed H.R. 2112, the Consolidated and Further Continuing Appropriations Act of 2012 into law.  In addition to continuing VA and FHA housing benefits and implementing a veteran’s employment program, this bill also included $360 million in funding for the Equal Employment Opportunity Commission (“EEOC”) for FY 2012.  This figure reduces the EEOC’s budget by $7 million from what the agency received in FY 2011 and is $25.5 million less than the EEOC requested.  This budget cut comes just a few days after the EEOC’s release of its Fiscal Year 2011 Performance and Accountability Report (“PAR”) on November 15, 2011.  The PAR reflects that although the EEOC is losing funding the number of discrimination charges that the agency deals with is steadily increasing.  In fact, in FY 2011 the EEOC received a total of 99,947 charges, which is the highest number of charges in the agency’s 46 year history.  This increased number of charges is part of a five year upward trend from the 75,768 charges that the EEOC had in 2006.  As the EEOC expects this trend to continue, with 108,000 charges expected in 2012, these new budget constraints may impose certain limitations on how the EEOC deals with its caseload.  There is a potential that EEOC will shift some of its focus to large-scale employment cases and to higher-stakes litigation.   During these rough economic times, even the agency that protects American workers from discrimination based upon their race, color, religion, sex, national origin, age, disability and genetic information, is taking a hit.  It is more important now than ever to have competent counsel standing by your side as you try to navigate an underfunded EEOC.  Individuals who believe they may have been discriminated against by their employer should contact Starrs Mihm LLP as soon as possible to discuss their potential case.

STARRS, MIHM AND BERNHARDT SELECTED AS BEST LAWYERS® 2012
11/09/2011

DENVER – Attorneys Elizabeth A. Starrs, Michael T. Mihm and Susan Bernhardt, of Starrs Mihm LLP, have been selected for inclusion in The Best Lawyers in America® 2012 (Copyright 2011 by Woodward/White, Inc., of Aiken, S.C.).

This is the fifth year Starrs has been selected to the prestigious Best Lawyers® list in both legal malpractice - plaintiffs and legal malpractice - defendants. 

Mihm has been included in The Best Lawyers in America® for two years in a row for legal malpractice - plaintiffs. 

Bernhardt has been selected to The Best Lawyers in America® for the first year in both arbitration and mediation.

Starrs focuses on legal malpractice, business litigation, employment, mediation and arbitration.  She has the distinction of having tried more legal malpractice cases than any other lawyer in Colorado.  Moreover, she has tried employment cases involving well-known and high profile companies and individuals.  She is an approved mediator and arbitrator by the American Arbitration Association.

Mihm focuses on representing plaintiffs in legal malpractice lawsuits.  He also handles a wide variety business disputes, as well as select catastrophic personal injury and wrongful death cases.  Mihm is the managing editor of Lawyers' Professional Liability in Colorado, Second Edition (CLE of Colorado, Inc., 2005, Michael T. Mihm ed.), a two-volume, 42-chapter book on the law of lawyer’s professional liability and professional ethics.

Bernhardt's practice emphasizes business disputes, securities fraud, partnership and corporate fiduciary duties, corporate governance, and "squeeze out" and "freeze out" lawsuits, as well as mediation and arbitration.  The American Arbitration Association has approved Bernhardt as an arbitrator for commercial and employment disputes.   

Published annually, The Best Lawyers in America® is widely regarded as the preeminent referral guide to the legal profession in the United States.  The Best Lawyers in America® lists are compiled from more than 500,000 detailed evaluations of lawyers by other lawyers.

BACKGROUND

THE BEST LAWYERS IN AMERICA®

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 41,000 leading attorneys cast almost 3.9 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Best Lawyers in America, Elizabeth Starrs, Liz Starrs, Michael Mihm, Mick Mihm, Susan Bernhardt
Sexual Harassment in the News Again
11/08/2011

The recent news surrounding multiple allegations against Presidential candidate Herman Cain has brought the issue of workplace sexual harassment into the spotlight again.  The allegations against Mr. Cain, whether true or not, reflect the serious nature of sexual harassment in today’s workplace.  Too often employees are forced to endure unwanted sexual advances, inappropriate sexual statements and generally offensive sexual conduct and comments that make the workplace a “hostile work environment.”  While isolated jokes, teasing or comments may not provide a sufficient basis for a sexual harassment claim based on a hostile work environment, the true test involves careful consideration of the subjective and objective factors involved in the particular circumstances.  In Christian v. AHS Tulsa Reg’l Med. Ctr., LLC, the Tenth Circuit Court of Appeals recently described these considerations as a two-part test, requiring the victim to first “establish that a reasonable person would find the work environment hostile or abusive,” and then to show “that she [or he] subjectively perceived the work environment to be hostile or abusive.”  In other words, to succeed on a sexual harassment claim based upon a hostile work environment, the victim must not only show that he or she perceived the circumstances to constitute a sexually hostile or abusive environment, but also that a reasonable person in the same situation would also perceive the circumstances to be sexually hostile or abusive.  Ariane De Vogue has posted a good article about sexual harassment and Mr. Cain on the ABC News Legal Blog at abcnews.go.com/blogs/politics/2011/11/sexual-harassment-where-is-line-drawn/.  Victims of sexual harassment in the workplace, amounting to a hostile work environment, should contact Starrs Mihm immediately to discuss their potential claims.

Christian v. AHS Tulsa Reg’l Med. Ctr., LLC, Sexual Harassment, Sexual Harassment Claim, Sexual Harassment in the Workplace
Wal-Mart Gender Discrimination Class Action Isn’t Finished
11/07/2011

Just four months after the U.S. Supreme Court dismissed their nationwide class action lawsuit for gender discrimination, Betty Dukes and other current and former Wal-Mart employees are back.  Although the Supreme Court’s decision in June held that the original plaintiff class did not meet the commonality requirements for class certification, it did not rule on the substance of the class Complaint, i.e. whether Betty Dukes and other female Wal-Mart employees had in fact been victims of sexual discrimination.  The Supreme Court did however lay out specific guidelines for class certification, including a more stringent commonality requirement.  As Justice Scalia wrote for the five justice majority, the class certification failed in part because the case involved “literally millions of employment decisions,” and the plaintiffs could not point to “some glue holding the alleged reasons for all those decisions together.”  Consequently, on October 26, 2011, a fourth amended complaint was filed in the Dukes v. Wal-Mart Stores, Inc. case in the U.S. District Court for the Northern District of California.  This complaint specifically limits the potential class to female Wal-Mart employees in California and some surrounding areas.  The complaint also attempts to correct other issues of commonality noted by the Supreme Court, by focusing on the common facts of the class claims and the narrowed focus of the class representation.  The complaint describes the California region of Wal-Mart stores as implementing a “good old boy philosophy” where job opportunities were passed along by word-of-mouth, rather than being posted, and usually given to men.  Employees and former employees who believe that they are or have been the victim of gender discrimination in the workplace should contact the employment discrimination attorneys at Starrs Mihm LLP of Denver, Colorado, as soon as possible to discuss their potential claim. 

Dukes v. Wal-Mart Stores, Employee Discrimination, Gender Discrimination, Inc., Wal-Mart Employee Discrimination, Wal-Mart Employee Sexual Discrimination
Former Associate of International Law Firm Sued for Legal Malpractice
11/01/2011

The international law firm Crowell & Moring is being sued for legal malpractice by a client who alleges that one of its former associates “improperly diverted” millions of dollars in escrow funds that were supposed to be held in the law firm’s account.  The former associate, Douglas R. Arntsen, was recently arrested in Hong Kong for charges related to the alleged wrongdoing.  The plaintiff alleges that Crowell & Moring engaged in professional negligence and breached ethical and contractual duties when it failed to monitor the funds which it held in escrow and failed to prevent its employees from improperly diverting such funds.  A total award in excess of $6 million is sought by the plaintiff, which includes over $5.5 million in funds that were supposed to be held in escrow, as well as attorney fees and costs.  This legal malpractice lawsuit against a powerhouse international law firm is just another example of the recent increase in cases involving “rogue” professionals who have used their positions of power and trust to steal funds from their clients and employers.  Individuals who have been victims of such legal malpractice or corporate wrongdoing should contact Starrs Mihm LLP immediately to protect their rights and interests.

Legal Malpractice
EEOC Files Discrimination Suit Against Bass Pro Shops
10/04/2011
Elizabeth Starrs
Employment Litigation

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Wednesday September 21, 2011, against Missouri based outdoor supplies retailer Bass Pro Shops in the United States District Court for the Southern District of Texas, Houston Division.  The lawsuit alleges that the retailer has engaged in a pattern of illegal ethnic background and racial discrimination against black and Hispanic workers and job applicants, retaliated against employees who raised questions, and destroyed records.  As the Chair of the EEOC, Jacqueline A. Berrien, stated, “Excluding qualified individuals from employment because of their race or ethnicity or in retaliation for exercising protected rights are fundamental violations of the laws we enforce.”  Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race and national origin, and prohibits employers from retaliating against employees who complain about employment discrimination.  Individuals who believe they may be victims of employment discrimination because of their ethnic background or race should contact Starrs Mihm LLP regarding their potential claims.

Bass Pro Shops Employee Discrimination, EEOC, Employee Discrimination, Employment Discrimination, Equal Employment Opportunity Commission, Illegal Ethnic Background Discrimination, Racial Discrimination, Title VII of the Civil Rights Act of 1964