Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

"In Flanders fields . . . ." (via Zyance)

“In Flanders fields . . . .”
(via Zyance)

Having been through a seven-week federal criminal “pill mill” trial, I think a lot about enforcement of the Controlled Substances Act and its effect on physicians.  Aggressive enforcement effects others in healthcare as well, including management:

“It’s very hard for medical professionals and those in upper management, such as hospital CFOs, CEOs, and CMOs, to see themselves as criminals,” says Jack Sharman, partner at Lightfoot, Franklin, and White, a law firm headquartered in Birmingham, AL.

“This difficulty to perceive what someone else might think merits a criminal investigation impedes judgment and slows internal response.”

While physicians might not see themselves as criminals for managing patients’ pain or making sure they had enough pills to get through a holiday, it’s not hard for others to come to that conclusion, says Sharman.

Health Leaders MediaHere is the full text of my interview with Health Leaders Media:What the Crackdown on Painkiller Prescribing Means for HR

 

John McRae (1872-1918)

John McRae (1872-1918)

If your recall for literature is not what it once was, In Flanders Field is a poem by John McRae, spoken from the point of view of World War I dead:

In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place, and in the sky, 
The larks, still bravely singing, fly, 
Scarce heard amid the guns below. 

We are the dead; short days ago
We lived, felt dawn, saw sunset glow, 
Loved and were loved, and now we lie
In Flanders fields. 

Take up our quarrel with the foe! 
To you from failing hands we throw
The torch; be yours to hold it high! 
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

 


The Freedom of Little Joe Cartwright: Tax Crime, Edgar Allan Poe, Noir Film and Lacrosse

Notes for the week.

Prosecuting Individuals

Federal criminal tax lawyer Jack Townsend blogs at Federal Tax Crimes.  Here is his note on Prosecuting Corporate Employees, particularly in the tax context:

I have previously blogged on Professor Brandon Garrett (UVA Law) who have carved out an academic niche on how the Government deals with corporate crime, particularly large corporate crime (the too big to jail group). See e.g., Judge Jed Rakoff Reviews Brandon Garrett’s Book on Too Big to Jail: How Prosecutors Compromise with Corporations (Federal Tax Crimes Blog 2/10/15), here. At the risk of oversimplifying his arguments, I summarize them in part relevant to this blog entry: When the Government goes after corporate misconduct, it too often focuses only on the corporation in terms of criminal sanctions and not the individuals, particularly those higher up the chain, who committed the underlying conduct. Corporations cannot go to jail; individuals can. Prosecuting and convicting individuals in addition to corporations could, he thinks, provide more front-end incentive for individuals to forego illegal conduct within the corporations. However, as fans of tax crimes know at least anecdotally, it is hard to convict higher level corporate officers for conduct that their underlings actually commit. The poster child example is the acquittal of Raoul Weil, a high-level UBS banker who “remoted” himself from the dirty work of actually servicing U.S. taxpayers seeking to evade U.S. tax. See e.g., Raoul Weil Found Not Guilty (Federal Tax Crimes 11/3/14; 11/6/14).

Mr. Townsend goes on to discuss the DOJ’s Yates Memorandum and new work by University of Virginia law professor Brandon Garrett.  Professor Garrett’s website (Federal Organizational Prosecution Agreements) is the best compendium of deferred-prosecution and non-prosecution agreements.

Michael Landon ("Little Joe Cartwright") being served with a subpoena (1968)

Michael Landon (“Little Joe Cartwright”) being served with a subpoena (1968)

Another useful Townsend post addresses a common issue — the Government’s attempt to muzzle the recipients of subpoenas:

In United States v. Gigliotti, 2015 U.S. Dist. LEXIS _____ (ED NY 12/23/15), here, Judge Dearie denied a motion to suppress evidence obtained pursuant to grand jury subpoena that unlawfully contained the following:
YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.

Sound familiar?  Read the entire piece at Judge Criticizes Prosecutor’s Use of Language Directing Secrecy for Receipt of Grand Jury Subpoena.  We have written about the grand jury previously herehere and here.  If you are to young (or too old) to remember Bonanza on TV, here is a refresher.  Here is an episode from 1960 entitled — appropriately, for White Collar Wire readers — “Desert Justice”:

Head-on-a-platter and all that.

Head-on-a-platter and all that.

Or Not Prosecuting Individuals?

White Collar Wire should have sent a Christmas goose to Senator Elizabeth Warren (D-MA), who wants more white-collar types to get indicted: 2015 Spurred Billions in Bank Fines, But Not Enough for Warren.  In particular:

In a 10-page report titled “Rigged Justice: 2016,” the U.S. Senator’s staff cited 20 cases in which they say prosecutors showed “timidity” by not pursuing individuals for civil or criminal misdeeds. No executives at Citigroup Inc., JPMorgan Chase & Co., or Deutsche Bank AG were accused of wrongdoing in cases alleging rigged currency markets and the misleading of investors, her office wrote in the document released Friday. The investigations led to their companies paying billions of dollars in penalties.

Senator Warren will have none of the Yates Memo, thank you:

The report even dismisses a recent U.S. Justice Department announcement, known as the Yates memo, in which Deputy Attorney General Sally Quillian Yates heralded a new direction by telling prosecutors to embark on investigations by focusing on people, not companies. “Both before and after this DOJ announcement, accountability for corporate crimes has been shockingly weak,” Warren’s office wrote.

“Shocking to whom” is a good question, but it’s all good for the white-collar bar.  Here is her report.

Good Practices and Bad

A miscalculated penalty, perhaps.

A miscalculated penalty, perhaps.

From the Harvard Law School Forum on Corporate Governance and Financial Regulation and Jon Eisenberg, a partner in the Government Enforcement practice at K&L Gates LLP, here is a useful article (with cases and charts) about the SEC’s use of civil monetary penalties.  Tellingly, and sadly, the authors point out that “these decisions might not survive appellate scrutiny . . .  but very few respondents appeal their sanctions all the way to the D.C. Circuit.”

 

 

Hall monitor?

Hall monitor?

Deferred-prosecution agreements often impose corporate monitors.  Should the reports of such monitors be kept confidential?  A federal judge ordered the release of the HSBC monitor’s report, over the object of both HSBC and DOJ:

A federal judge has ordered the release of a report detailing how well HSBC Holdings Plc has complied with anti-money laundering requirements imposed by U.S. regulators when the British bank was fined $1.92 billion three years ago.

Thursday’s order by U.S. District Judge John Gleeson in Brooklyn is a defeat for HSBC and the U.S. Department of Justice, which complained the release could make it easier to launder money, including for terrorism, and discourage cooperation with law enforcement.

“This case implicates matters of great public concern and is therefore one which the public has an interest in overseeing,” Gleeson wrote, citing the public’s constitutional right of access under the First Amendment.

I cannot speak to the terrorism angle, but cooperation (and thus, monitoring) both work best when company employees have some comfort that what they say and do will be held in confidence, at least within reasonable parameters.  The public’s oversight interest is real, but surely an organization that has paid billions in fines and is living with a monitor is being “overseen” to a reasonable extent, especially when that oversight requires continued cooperation to be effective.

Read the entire article here: HSBC money laundering report must be made public.  To read our earlier posts about DPAs and monitors, go herehere, and here.

Crime Fiction

Digital content, quoth the raven.

Digital content, quoth the raven.

From the good folks at The Rap Sheet, a piece on the nominees for the 2016 Edgar Awards.  Here is the complete list from the Mystery Writers of America.

Thomas Hardy (1840-1928)

Thomas Hardy (1840-1928)

It is not a raven, but there is a bird in  Thomas Hardy’s poem “The Darkling Thrush”:

I leant upon a coppice gate
When Frost was spectre-grey,
And Winter’s dregs made desolate
The weakening eye of day.
The tangled bine-stems scored the sky
Like strings of broken lyres,
And all mankind that haunted nigh
Had sought their household fires.

The land’s sharp features seemed to be
The Century’s corpse outleant,
His crypt the cloudy canopy,
The wind his death-lament.
The ancient pulse of germ and birth
Was shrunken hard and dry,
And every spirit upon earth
Seemed fervourless as I.

At once a voice arose among
The bleak twigs overhead
In a full-hearted evensong
Of joy illimited;
An aged thrush, frail, gaunt, and small,
In blast-beruffled plume,
Had chosen thus to fling his soul
Upon the growing gloom.

So little cause for carolings
Of such ecstatic sound
Was written on terrestrial things
Afar or nigh around,
That I could think there trembled through
His happy good-night air
Some blessed Hope, whereof he knew
And I was unaware.

Crime Noir and Miles Davis

It's Miles. It's cool.

It’s Miles. It’s cool.

On the subject of crime, Apple Music must have intuited that I like noir-ish fiction and cool jazz.  It directed to me a set of Miles Davis that included “Ascenseur pour l’echafaud” (1958), a French crime film by Louis Malle released in the States as Elevator To The Scaffold (or Lift To The Scaffold in the U.K.)  Davis’s horn on the title track is as evocative as it gets, as seen here:

 

ESPN's 30-for-30

ESPN’s 30-for-30

Wishing It Were Fiction: Duke Lacrosse and Due Process

On Sunday, March 13, at 9 p.m. ET, ESPN’s acclaimed “30 for 30” film series will present Fantastic Lies, a film about the the Duke lacrosse case.  Here is an interview with the producer, Marina Zenovich.

Damage done.

Damage done.

We have written about the Duke lacrosse case before, here and here.

 

Depends on how we sell it.

Depends on how we sell it.

In opening statements and closing arguments, the genuine is good.  The cornball or the obscure, on the other hand, are bad.  The same is true of our written work.  As noted by Philip Corbett, master of the After Deadline blog in the New York Times:

[A]n overreliance on anecdotal openings — especially the classic “stranger in the lead” approach — can make our prose feel shopworn rather than vivid. This is particularly true when readers encounter unfamiliar names at the top of two or more adjacent stories, whether in print or online.

 

Read the entire piece: Here’s Someone You Never Heard of. Read On.

 


Liberty and Edward Thomas

Lady Liberty.

Lady Liberty.

“Liberty” is one of the foundational concepts of the American enterprise, individual liberty in particular.

To the white-collar practitioner (and client), the concept of liberty takes on a special urgency.

Edward Thomas

Edward Thomas

Edward Thomas was born in Lambeth, London, on March 3, 1878. His books include The Woodland Life (1896), In Pursuit of Spring (1914), and Last Poems (1918). Thomas died in World War I at the battle of Arras on April 9, 1917.  “Liberty” was published in Thomas’s book Poems (H. Holt & company, 1917).

Liberty

by Edward Thomas (1878-1917)

The last light has gone out of the world, except
This moonlight lying on the grass like frost
Beyond the brink of the tall elm’s shadow.
It is as if everything else had slept
Many an age, unforgotten and lost
The men that were, the things done, long ago,
All I have thought; and but the moon and I
Live yet and here stand idle over the grave
Where all is buried. Both have liberty
To dream what we could do if we were free
To do some thing we had desired long,
The moon and I. There’s none less free than who
Does nothing and has nothing else to do,
Being free only for what is not to his mind,
And nothing is to his mind. If every hour
Like this one passing that I have spent among
The wiser others when I have forgot
To wonder whether I was free or not,
Were piled before me, and not lost behind,
And I could take and carry them away
I should be rich; or if I had the power
To wipe out every one and not again
Regret, I should be rich to be so poor.
And yet I still am half in love with pain,
With what is imperfect, with both tears and mirth,
With things that have an end, with life and earth,
And this moon that leaves me dark within the door.


Okay, So It’s A Lurid Book Cover: Summer Weekend Cocktails, Dylan Thomas on YouTube, Good Writing and Great Music

Our notes for Friday, beginning with cocktails; moving through literature; ending with music.

The young bikini-and-martini set, thankfully.

The young bikini-and-martini set, thankfully.

Brown Whisky Is Not Just For Winter.  From the New York Times, some summer drinks using brown booze.

And Old-Fashioneds Aren’t Always Dark.  From Gastronomista, a tequila old-fashioned that actually sounds good.

Go Scandinavian.  As long as we’re discussing traditional cocktails with non-traditional spirits, I might try an aquavit Manhattan (if I can find some aquavit) (from Saveur.com).

Movie Booze.  For movie buffs, from Liquor.com, a list of The 6 Most Influential Drink Orders of All Time.

There’s Always Time For Good Writing.  Some superior prose passages from “After Deadline.”

Considering the aquavit Manhattan.

Considering the aquavit Manhattan.

Welsh Poetry Is Good For You.  From the poet Dylan Thomas (1914-1953), When All My Five and Country Senses See.  I couldn’t it on YouTube, so you will have to content yourself with Do Not Go Gentle Into That Good Night.  It is sometimes challenging to follow what Thomas means, but there is no doubt as to what he says.

St. Paul and The Broken Bones.  If you haven’t heard this Birmingham-based band’s classic-soul, horn-driven sound, you’ve been missing out.  Try “Call Me.”

St. Paul and The Broken Bones

St. Paul and The Broken Bones


“Compensation” | Paul Laurence Dunbar

On budget, or off?

On budget, or off?

Compensation is a matter dear to lawyers’ hearts, white-collar and otherwise.  Here’s a poem (via www.poets.org) by Paul Laurence Dunbar:

Compensation

Because I had loved so deeply,
Because I had loved so long,
God in His great compassion
Gave me the gift of song.

Because I have loved so vainly,
And sung with such faltering breath,
The Master in infinite mercy
Offers the boon of Death.

Paul Laurence Dunbar was born in Dayton, Ohio, in 1872.

Paul Laurence Dunbar

Paul Laurence Dunbar

He wrote numerous books of poems, including Majors and Minors (1895), as well as several novels and a play. He died in 1906 in Dayton, Ohio.  “Compensation” was originally published in Dunbar’s 1905 collection Lyrics of Sunshine and Shadow.

 

 

 


“Appellate Jurisdiction” | Marianne Moore (1887-1972)

What's the appeal?

What’s the appeal?

For pondering our appeals of all sorts.

 

Appellate Jurisdiction

by

Marianne Moore

Fragments of sin are a part of me.
New brooms shall sweep clean the heart of me.
      Shall they? Shall they?

When this light life shall have passed away,
God shall redeem me, a castaway.
      Shall He? Shall He?

 

About This Poem

“Appellate Jurisdiction” by Marianne Moore was published in the May 1915 issue of Poetry along with four other poems by Moore.

Marianne Moore was born in Saint Louis, Missouri, on November 15, 1887. Moore, a former Chancellor of the Academy of American Poets, was the recipient of the National Book Award and the Pulitzer Prize. She died in New York City on February 5, 1972.


A Poem Fit For White-Collar Crime: In the City of Night

John Gould Fletcher

John Gould Fletcher (1886-1950)

A poem, In the City of Night, by John Gould Fletcher, that’s fit for white-collar crime:

In the City of Night

by John Gould Fletcher

(To the Memory of Edgar Allan Poe)

City of night,
Wrap me in your folds of shadow.

City of twilight,
City that projects into the west,
City whose columns rest upon the sunset, city of square, threatening 
    masses blocking out the light:
City of twilight,
Wrap me in your folds of shadow.

City of midnight, city that the full moon overflows, city where the cats 
    prowl and the closed iron dust-carts go rattling through the shadows:
City of midnight,
Wrap me in your folds of shadow.

City of early morning, cool fresh-sprinkled city, city whose sharp roof 
    peaks are splintered against the stars, city that unbars tall haggard 
    gates in pity,
City of midnight,
Wrap me in your folds of shadow.

City of rain, city where the bleak wind batters the hard drops once and again, 
    sousing a shivering, cursing beggar who clings amid the stiff Apostles on the 
    cathedral portico;
City where the glare is dull and lowering, city where the clouds flare and flicker 
    as they pass upwards, where sputtering lamps stare into the muddy pools 
    beneath them;
City where the winds shriek up the streets and tear into the squares, city whose 
    cobbles quiver and whose pinnacles waver before the buzzing chatter of raindrops 
    in their flight;
City of midnight,
Drench me with your rain of sorrow.

City of vermilion curtains, city whose windows drip with crimson, tawdry, tinselled, 
    sensual city, throw me pitilessly into your crowds.
City filled with women's faces leering at the passers by,
City with doorways always open, city of silks and swishing laces, city where bands 
    bray dance-music all night in the plaza,
City where the overscented light hangs tepidly, stabbed with jabber of the crowd, 
    city where the stars stare coldly, falsely smiling through the smoke-filled air,
City of midnight,
Smite me with your despair.

City of emptiness, city of the white façades, city where one lonely dangling lantern 
    wavers aloft like a taper before a marble sarcophagus, frightening away the ghosts;
City where a single white-lit window in a motionless blackened house-front swallows 
    the hosts of darkness that stream down the street towards it;
City above whose dark tree-tangled park emerges suddenly, unlit, uncannily, a grey 
    ghostly tower whose base is lost in the fog, and whose summit has no end.
City of midnight,
Bury me in your silence.

City of night,
Wrap me in your folds of shadow.

City of restlessness, city where I have tramped and wandered,
City where the herded crowds glance at me suspiciously, city where the churches are 
    locked, the shops unopened, the houses without hospitality,
City of restlessness,
Wrap me in your folds of shadow.

City of sleeplessness, city of cheap airless rooms, where in the gloom are heard snores 
    through the partition, lovers that struggle, couples that squabble, cabs that rattle, 
    cats that squall,
City of sleeplessness,
Wrap me in your folds of shadow.

City of feverish dreams, city that is being besieged by all the demons of darkness, city of 
    innumerable shadowy vaults and towers, city where passion flowers desperately and 
    treachery ends in death the strong:
City of night,
Wrap me in your folds of shadow.