Blog entries

Health Care Provider Liability under the False Claims Act (31 U.S.C. § 3729 et seq.)

Andrew Rothbauer — Tue, 22 Nov 2011 02:46:53 +0100

Health Care Provider Liability under the False Claims Act (31 U.S.C. § 3729 et seq.)

By Cliff Holmes, Esq.

Attorney for Dunlap, Grubb & Weaver PLLC (Washington, DC)

A recent decision by the Third Circuit Court of Appeals details circumstances under which health care providers may be held liable under the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., for alleged fraud committed under Part C of the U.S. Medicare program. United States ex rel. Wilkins v. United Health Group, Inc., 2011 WL 2573380 (3d Cir. June 30, 2011). While comparatively less frequent than FCA claims arising under Parts A, B, or D of the Medicare program, with over 9 million enrollees at present— a figure that has grown from 5.4 million in 2006— the frequency of claims of fraud under Medicare Part C can be expected to increase in coming years.

Medicare Part C (Medicare Advantage)

Among Medicare Parts A through D, each serves a different purpose. Medicare Part A provides insurance for covered inpatient hospital and related post-hospital services. Part B is a voluntary supplementary insurance program that covers physicians’ services and certain other medical and health services, while Part D is a voluntary prescription drug benefit program.

Medicare Part C, also known as Medicare Advantage, authorizes qualified individuals to opt out of the fee-for-service coverage model of Medicare Parts A and B and enroll in privately managed care plans that supply coverage for both inpatient and outpatient services. Medicare Advantage plan coverage comes in a variety of forms, including Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), Private Fee-for-Service plans (PFFS), Special Needs Plans (SNPs), and Medical Savings Accounts (MSAs).

Organizations that provide services under Medicare Parts C and D do so under contracts with the Centers for Medicare and Medicaid Services (“CMS”), the U.S. agency that administers Medicare, along with Medicaid and the Children's Health Insurance Program. Under Medicare Part C and Part D, participating organizations are paid a capitated rate per enrollee – i.e., an amount of money that is fixed based on factors such as the risk presented by individual enrollees, and other characteristics. 42 C.F.R. § 422.300 et seq., 42 C.F.R. § 423.301 et. seq. Medicare Parts C and D thus differ from Medicare Parts A and B in that participating organizations are not paid fees for specific services performed.

CMS makes capitated payments to participating organizations on a monthly basis, in advance, based on the volume of enrollees; the capitated payment amount is adjusted to reflect variables such as risk as well as rate variations in each plan’s service area. 42 C.F.R. § 422.304, 42 C.F.R. § 423.315. Because providers are paid a capitated (i.e., fixed) rate per enrollee under Medicare Part C, Part C providers have little if any monetary incentive to exaggerate to CMS the level of service or care that they have ostensibly rendered to any individual patient, or a group of patients. Claims arising under Part C thus arise under a different and arguably far narrower range of potential facts giving rise to a fraud or alleged fraud than those under Parts A, B, and D. Compare, e.g., United States v. Prabhu, 442 F .Supp. 2d 1008, 1010 (D. Nev. 2006) (Part A claims alleging that defendant violated the FCA “by billing for simple pulmonary stress tests…when performed as part of a pulmonary rehabilitation program”); United States ex rel. Augustine v. Century Health Services, 136 F.Supp.2d 876, 880 (M.D. Tenn. 2000) (alleging impermissible Part A invoicing for costs exceeding the “reasonable costs of providing services”).

Wilkins

In Wilkins, the Third Circuit affirmed in part and reversed in part the decision by the District Court for the District of New Jersey (Kugler, J.) dismissing the FCA count of the Wilkins relators’ complaint on Rule 12(b)(6) grounds. The Wilkins relators alleged that the defendants (United Health Group, Inc., Americhoice, and Americhoice Of New Jersey, Inc.) falsely certified under Medicare Part C that they were in compliance with all healthcare laws and regulations even though they knowingly violated several Medicare marketing regulations. The relators further alleged that AmeriChoice-NJ violated the FCA by illegally providing kickbacks in violation of 42 U.S.C. § 1320a-7b; according to the relators, AmeriChoice-NJ shought to influence a New Jersey medical clinic to transfer its patients to AmeriChoice-NJ's Medicare and Medicaid programs. Last, the relators alleged that AmeriChoice-NJ agents separately violated 42 U.S.C. § 1320a-7b (the federal “Anti-Kickback Statute”) by providing inducements to doctors to provide the names of patients eligible for Medicare and Medicaid programs.

CMS requires that Medicare Advantage providers supply a “Certification Of Monthly Enrollment and Payment Data Relating to CMS Payment to a Medicare Advantage Organization” with each Part C monthly request for capitated payments. These reports require that providers certify that

The MA Organization has reported to CMS for applications received in the month of (MONTH AND YEAR) all new enrollments, disenrollments, and changes in Plan Benefit Packages, as well as those beneficiaries who have met the qualifying institutional period with respect to the above-stated MA plans. Based on best knowledge, information, and belief, all information submitted to CMS in this report is accurate, complete, and truthful.

Separately, by regulation, when CMS enters into an initial contract for Part C services with a Part C provider, the Part C provider is required to certify that it “agrees to comply with all the applicable requirements and conditions set forth in this part and in general instructions. An MA organization's compliance with paragraphs (a)(1) through (a)(13) of this section is material to performance of the contract.” 42 C.F.R. § 422.504(a); among the provisions of sub-sections (a)(1) through (a)(13) of Section 422.504(a) are that at 42 C.F.R. § 422.504(a)(1), which provides that “[t]he MA organization agrees— (1) To accept new enrollments, make enrollments effective, process voluntary disenrollments, and limit involuntary disenrollments, as provided in subpart B of this part.” Subpart B provides, at 42 C.F.R. § 422.74(a) (“Disenrollment by the MA organization”), that “Except as provided in paragraphs (b) through (d) of this section, an MA organization may not—(1) Disenroll an individual from any MA plan it offers; or (2) Orally or in writing, or by any action or inaction, request or encourage an individual to disenroll.”

The Wilkins court held that the Wilkins relators had stated a valid claim for FCA liability under the implied false certification theory of liability by alleging that compliance with the federal Anti-Kickback Statute was an express condition of payment to which the defendants agreed when they entered into their initial agreement with CMS; and, relatedly, that the Defendants knowingly violated the AKS. The court held, however, that the relators had failed to state a valid claim for FCA liability predicated on the defendants’ alleged violation of Medicare marketing regulations.

Taking Wilkins in context with 42 C.F.R. § 422.504(a), the case stands for the proposition that putative whistle-blowers can state cognizable FCA claims centered on allegations that a provider knowingly requested or encouraged Part C enrollees to disenroll from a Part C program. Because Part C providers receive payments from CMS on a capitated, i.e., fixed basis per patient, providers face financial incentives to limit the amount of expenditure on patients with greater-than-anticipated medical need. If a provider knowingly or systematically encourages such high-cost patients to disenroll from Part C, the provider could face FCA liability.

Dunlap Grubb & Weaver PLLC attorneys, including the author, Cliff Holmes, have experience in reviewing such plans and litigating Part C Medicare claims under the FCA. The author can be contacted at mail@dglegal.com.

Upgrading Your Military Discharge after Adverse Action

Andrew Rothbauer — Fri, 14 Oct 2011 05:00:00 +0100

Upgrading Your Military Discharge after Adverse Action

Many recently discharged service members – especially those separated administratively with an Other Than Honorable (OTH) conditions discharge – are led to believe that their discharge will be automatically upgraded to Honorable (H) after six (6) months. This is one of the most prevalent and widely held false beliefs within the military community, perpetuated by rumor that has been circulated throughout the military for years. Victims of this widely spread rumor often suffer significant consequences as an adverse discharge carries with it many consequences that will have repercussions for years. Discharge upgrades are never “automatic.” It is much better for a former service member to take proactive steps in an effort to obtain a discharge upgrade rather than making those efforts only after being rejected for federal employment or being turned down for a loan.

First and foremost, in order to obtain an upgrade, a service member must request the discharge within fifteen (15) years of from the date of discharge. In order to obtain an upgrade a former service member must convince the Discharge Review Board that his/her discharge was either (1) “inequitable” or (2) “improper.”

Any person who has been discharge or dismissed from military service (or his/her heirs or legal representative), may submit an application for discharge upgrade. Title 10, U.S. Code § 1553. The Secretary of each branch of service is required to “establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative.” The Boards cannot revoke a discharge, or recall a person to active duty.

The formal application process for a discharge upgrade begins with the submission of a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. This form is easily found on-line, and completion of the form is relatively simple. However, actually obtaining a discharge upgrade is a tall task. In order to establish that a discharge is “inequitable” a former service member must establish that his/her discharge is not consistent with the policies and traditions of the service. In order to establish that a discharge is “improper” a former service member must establish that the reason or characterization of the discharge is in error (i.e. that it is false or contradicts a governing law or regulation). Gathering and assembling the evidence to successfully support an upgrade request is a complex and difficult process. The Discharge Review Board will offer little to no assistance. Given the importance of obtaining an upgrade, former service members are wise to seek the guidance of experienced counsel when tackling the process. Going it alone in this endeavor is a difficult proposition with a huge down side. Only those former service members who properly support their applications to meet the taxing upgrade standards imposed by the government will find success.

What is and How to Become a Sports Agent

Andrew Rothbauer — Mon, 29 Aug 2011 21:49:52 +0100

There are no specific requirements to become a sports agent, (other than having an athlete as a client), however in recent years a number of states have started requiring sports agents to register and similarly the NCAA has imposed some restrictions on agents and what they can do. That said, most sports agents are lawyers and have some financial background, as ultimately, law and business are two of the most important aspects of a sports agents duties and they are the two parts of the job that are the easiest to mess up. If you do become a sports agent and you are not a lawyer - get a lawyer on your team immediately, before your client signs a contract.

A sports agent's primary function is to negotiate contracts for the athlete and as such must be intimately familiar with the typical terms for such contracts and the status of Collective Bargaining Agreements (CBAs) for the particular athletes sport and organization. The CBAs change every few years so the agent has to stay very informed. Agents however, do more than handle contracts and promote the athlete. An agent is the athlete's advocate in a special position of trust with the duty of protecting the athletes present and future interests, including life after sports. We have all probably heard the joke about the meaning of the acronym NFL as "Not for Long." The agent has to consider this when the athlete does not and thus help prepare a financial plan and perhaps second career for the athlete for life after sports. I think an agent should consider educating their client as a primary responsibility, in addition to the primary responsibilities of negotiating individual and collective contracts for the athlete. Education should include:

media issues and how to deal with media

the business of being an athlete, including non-sports activities that leverage the athletes sports career (endorsements, speaking engagements, community events, charities etc.)

financial training on investments and handling money responsibly (retirement, not making bad investment decisions or loaning money to the wrong people)

An agent has to protect his or her client in every way possible while keeping that client informed, educated and in the loop.

Copyright & Clearance for Film Makers

Scott Tran — Thu, 07 Jul 2011 19:50:26 +0100

Tom Dunlap presented a seminar on copyright and copyright clearance for independent film at the Advent Film Workshop on June 23, 2011. For more information on the workshop see http://www.adventfilmgroup.com/Workshop.html. For a copy of the presentation click here.

Protect Your Intellectual Property

Joseph Leon — Tue, 28 Jun 2011 05:00:00 +0100

Tax Credits for Independent Film

Joseph Leon — Mon, 27 Jun 2011 23:02:01 +0100

Independent films can often be the most economically efficient route to take when it comes to raising money for film production; however, there are several factors at play that determine just exactly how efficient. Producers just starting out may not be aware of the most crucial factors affecting film production such as tax credits (which vary by state) and Section 181 of the Renewable Energy and Job Creation Tax Act of 2008. Including these important factors into the budget can help film producers distribute funds in the most effective manner possible.

First, producers should understand the fundamentals of state tax credits and production incentives. Tax credits are awarded because filming a movie in a certain location promotes tourism and creates jobs in that location. This is beneficial for the state economy and thus is considered highly valuable. It seems obvious that the first state to consider would be California. California offers a fairly generous tax credit to independent film producers that totals 25% tax credit for 75%+ production days or the entire production budget. This is compared to 20% tax credit available for feature films.

For independent film makers on a budget, it would be wise to look into filming in Ohio. Ohio is a good choice because, according to The Hollywood Reporter, the state has offered more than $29 million in tax credits to film productions and has led to the hiring of more than 9,000 Ohioans. One example of a film currently in production in the state is Over the Wall, which is currently receiving $1.6 million in tax credits for the production. The details are best sorted out by an experienced representative, such as Dunlap, Grubb & Weaver, which has been involved in the production of several independent films. The firm has dealt specifically with aspects of film production such as Screen Actors Guild (SAG) contracts, distribution agreements, general financing, etc.

Next, film producers must also understand what Section 181 is. Section 181 is part of the American Jobs Creation Act 2004 and was included to offer tax incentives specifically for those who invest in the production of independent films and television. This section states that an investor can benefit by deducting the invested money in film and television productions from the investor's passive income from that year. The Dunlap, Grubb & Weaver firm has extensive experience in this field, representing numerous established independent film companies and currently producing more than 300 films. Tom Dunlap was named as one of the 100 Most Powerful Lawyers by The Hollywood Reporter in 2010. This combined experience gives the firm a valuable authority on the current state of tax credits and the best solution for a wide range of independent film production budgets. For reference, a complete and current list of tax credits by state is tabled below.

AL- Production expenses must fall in the range of $500,000- $10,000,000. 25% rebate for state expenditures, 35% of the payroll to be allotted for Alabama residents.

AK- $100,000 minimum. Up to 44% in transferable tax credit.

AZ- Income tax credits equal to 20% or 30% of the company’s investment in qualifying production costs

CA- 25% tax credit on 75%+ production days/ entire budget

CO- 10% cash rebate for production costs. Must spend minimum of $100,000

CT- 30% tax credit

FL- 20-30% transferable tax credit

GA- up to 30% tax credit

HI- 15-20% tax credit

IL- 30% tax credit non qualified spending

IN- 15% tax credit. Must commit to a minimum of $50,000 in spending.

KS- 30% tax credit for up to $2 million. Not eligible after 2013.

KY- 20% tax credit. Minimum spending of $500,000.

LA- 35% transferrable tax credit. Minimum of $300,000. No maximum cap.

ME- 10-12% tax credit. Minimum of $75,000.

MD- 25% rebate granted. Must spend minimum of $500,000

MA- Required to spend at least 50% of the production in the state. Eligible for tax credit of 25 cents on each dollar spent in the state. No minimum or maximum. Production-related costs 100% exempt.

MI - 40% refundable tax credit. Minimum spending of $40,000.

MO- 35% tax credit. $100,000 minimum.

MT- 14% tax credit on Montana crew and talent salaries and 9% credit on production-related expenditures made in Montana.

NJ- 20% tax credit

NM- 25% tax rebate

NY- 30% fully-refundable tax credit

NC- 25% tax credit

OH- 35% refundable tax credit

OK - 37% rebates and tax credits

OR - 20% of goods and services from the state. Additional cash payment up to 16.2% of wages paid to production personnel.

PA - 25% tax credit to those who spend at least 60% of the production budget in the state.

SC - Maximum 20% rebate

SD- Available, but requires application to determine exact amount of rebate.

TN- 32% tax credit

TX - Also available. Exact number varies upon application.

UT - 25% tax credit rebate or cash rebate

VT- Hotel tax exemption, sales and use tax exemption and limited income tax exemption.

VA - Exempt from 4% of sales and use tax in the state.

WA -30% tax credit

WV - Up to 31% transferrable tax credits.

WI - 25% tax credit

WY - 15% cash rebate

Filing a Bid Protest

Scott Tran — Tue, 14 Jun 2011 20:31:56 +0100

The Government Accountability Office (GAO) certainly doesn't make it easy to file a government bid protest. The organization provides a forum for offerers and bidders who claim that a DOD government contract has been awarded in violation of federal laws and regulations. The GAO will ultimately make the final decision on whether the protest claim is valid. The filing process itself is fairly comprehensive and easily executable; however, it's the strict timelines that tend to trip people up more often than not. Essentially, the GAO is not messing around. With the set timeline, a few seconds can mean the difference between a filed case and a denied one. If you want to file a government contract bid protest, you will have to adhere to the strict deadlines set without risking a single folly in order to be successful.

Why do companies file? There are three main reasons:

Financial need to retain or obtain the work
Unfair treatment during
Award to an undeserving or unqualified competitor

The individual or group protesting must file the protest within 10 days of identifying the basis for the protest. In a situation where a requested and required debriefing is necessary, the GAO will extend the deadline 10 days after the date of the first debriefing session. The entire filing process takes approximately 100 days before a final GAO decision is made. Roughly 25 days after the protest is filed, the GAO contacts the agency involved to obtain what's called an Agency Report. The Agency Report must be filed by the agency 30 days after this initial contact. Additional documents may be used if a protester objects to the information in the Agency Report. If there is an objection, the protester must file their personal "comments" about the report within 10 days of receiving it or the protest may be dismissed entirely. If the GAO requires more information, they may adjust the timelines as long as the process in its entirety still falls within the 100 day limit. However, this overall extension doesn't imply an extension of the original 10 day limit for filing comments.

What questions do you need to answer before proceeding? Attorneys handling bid protests at firms like Dunlap, Grubb & Weaver will ask:

Why do you think the solicitation is not fair to your company?
How and why was your company not treated in a fair manner?
What documents, including e-mails and financial information do you have to support the allegations you would make?
Did you request a debriefing? (If an award was made).
Do you know how much a bid protest costs and how much time it can take?

Because this process can be tedious, complex and confusing, an attorney (preferably one with experience in this process) is essential for an ideal outcome. The Dunlap, Grubb & Weaver firm has attorneys on staff who have extensive experience with bid protests and know the system and the timeline inside and out. Several of our attorneys have served honorably in the United States Army and possess secret clearances. The attorneys at Dunlap, Grubb & Weaver well-versed in bid protests, but also in export licensing, contracts, disputes, qui tam litigation and OIG investigations. If you're considering filing a bid protest, an attorney at Dunlap, Grubb & Weaver can get you where you need to be without unnecessary deadline stress and confusion.

Legal Implications of DNA Fingerprinting

Scott Tran — Fri, 20 May 2011 20:00:46 +0100

Introduction & Issues Presented

DNA fingerprinting is a method used primarily by forensic scientists to compare fragments of DNA in order to identify an individual. Scientists can use blood, semen, skin, saliva or hair samples, extracting DNA, to identify a matching DNA of an individual.

DNA profiling can be used for a number of purposes, including:

Identify potential suspects whose DNA may match evidence left at crime scenes

Exonerate persons wrongly accused of crimes

Identify crime and catastrophe victims

Establish paternity and other family relationships

Identify endangered and protected species as an aid to wildlife officials (could be used for prosecuting poachers)

Detect bacteria and other organisms that may pollute air, water, soil, and food

Match organ donors with recipients in transplant programs

Determine pedigree for seed or livestock breeds

Authenticate consumables such as caviar and wine

(U.S. Department of Energy [USDOE], 2008)

There are a number of social, ethical and political issues involved in using DNA profiling that have different implcations amongst different cultures around the world. While these concerns used to center on the reliability of the science and there remain challenges on that front, those issues have become less prevelant as DNA profiling has beomce more common, the science more reliable and the the process more often put to the test in the Courtroom. Instead the public controversy usually centers on the privacy issues such as the potential for “genetic discrimination”, and the 4th Amednment right of an individual against unreasonable searches and seizures.

Background & Problems

DNA (deoxyribonucleic acid), is the basic building block of life, consisting of four base pairs. DNA is the genetic material inherited by humans. Virtually every individual cell has the same DNA, mostly located in the nucleus of the cell nucleus (called nuclear DNA). A small portion of DNA is also located in the mitochondria (called mitochondrial DNA or mtDNA). DNA information consists of four chemical bases: adenine (A), guanine (G), cytosine (C), and thymine (T) with approximately 3 billion bases in humans, of which more than 99 percent are the same in all people. The sequence of the bases determines the information available for building and maintaining an organism. (National Institutes of Health [NIH], 2008)

The bases in DNA pair up with one another, A with T and C with G, to form base pairs, each of which are attached to a sugar molecule and phosphate molecule (a nucleotide). Nucleotides are arranged in the familiar double helix pattern made famous by Watson and Crick. See Diagram 1.

Diagram 1: (U.S. National Laboratory of Medicine [USNLM], 2008)

The most important properties of human DNA in the realm of genetic fingerprinting are 1) its ability to replicate, 2) that an individual’s DNA remains the same throughout life, and 3) the polymorphisms in DNA (a small amount of DNA that differs from person to person, excluding identical twins).

Sir Alec Jeffreys at the University of Leicester, England first reported the technique in 1985 (Jeffreys, 1985) which has since undergone several impovements, resulting in the currnet DNA profile test. DNA testing was first used in a legal context in 1988 to solve the Enderby murders and convict Colin Pitchfork. Jeffries technique, called the multi-locus probe (MLP), used restriction enzymes to cut DNA into fragments and compared the sizes of selected sequences of single-strand DNA call restriction fragment length polymorphisms (RFLP), which are areas of great variation. (USNLM, 2006).

DNA profiling techniques changed rapidly to first the single-locus probe (SLP) and multi-locus probe (MLP) which rely on non-coding DNA called variable number tandem repeats (VNTR), and are ofen called RFLP for Restriction Fragment Length Polymorphism. While similar between closely related individuals, they have enough variability that it is extremely unlikely for unrelated humans to have the same alleles, thus making samples between different individuals highly distinguisable. (Thomson, Pilotti, Stevens, Ayres & Debenham, 1999) The earliest of the commonly used forensic DNA methods were the multi-locus probe

To profile an individual’s DNA lengths of variable sections of repetitive DNA, (short tandem repeats and minisatellites), are compared between samples to identify matching DNA. The loci are virtually the same between very closely related people but polymophisms, variable loci, are different enough that it is not likely for unrelated humans to have identical alleles. (Martin, 2004)

In the early 1990’s the techniques progressed even further, taking advantage of the advent of Polymerase Chain Reaction (PCR) to analyze short tandem repeats (STR) which are are polymorphic loci found throughout all eukaryotic genomes, initially using the Dq-alpha technique and eventually converging in both the United States and United Kingdom on the use of a system that employed PCR to amplify short tandem repeats (STRs). (Lynch, Cole, McNally & Jordan, 2008) Using PCR to replicate strands of DNA the new STR technique allowed forensic scientists to analyze as little as 1 ng of genomic DNA will yield a full STR profile (SLP required at least 100 ng). (Thomson et al., 1999) Additionally the STR system allowed for a much larger variety of sample types, making it easier to analyze DNA via small blood drops from finger pricks, heel pricks or buccal swabs. This offers significant benefits in terms of ease of taking the sample, transportation to the laboratory and storage. (Thomason et al., 1999)

Chart 1: A comparison of the DNA profiles for two individuals from multiple short tandem repeat (STR) markers on ten different chromosomes (A-J). A gender identification test reveals that the top profile belongs to a male and the bottom profile to a woman. The probability that two randomly chosen individuals have the same profile is1 in 3 trillion. (Lynch, 2003)

Finally, as recently as September of 2008 a group at the University of California at Berklely developed and sucessfully tested with the Palm Baech County Sherriff, an integrated “lab-on-a-chip system” for real-time forensic short tandem repeat (STR) analysis. (Liu, Yeung, Crenshaw, Crouse, Scherer & Mathies, 2008)

There are a number of national and international DNA databases. In the United States, members of the Armed forces, government employees and some criminals are required to provide a DNA samples for registration in a database. In the United States the offender database includes DNA from both felons and forensic submissions from crime scenes, called the National DNA Index (NDIS/ CODIS) which contains over 6,297,765 offender profiles and 237,199 forensic profiles which has produced over 76,100 hits assisting in more than 76,200 investigations as of September 2008. (Federal Bureau of Investigation [FBI], 2008) All 50 states have laws that require convicted sex offenders to submit DNA, with at least 44 states requiring convicted felons to submit DNA, and 9 states that require DNA samples from persons convicted of certain misdemeanors. Eleven states, including Virginia, authorizing DNA sampling of arrestees. Outside of the United States, the United Kingdom set up its DNA database in April 1995, followed by New Zealand and France in 1998 (FNAEG).

In 2005 the United States passed the Federal DNA Fingerprinting Act of 2005 (Title X of the Violence Against Women Act Reauthorization of 2005) which requires anyone arrested for any federal crime to provide a DNA sample. The DNA Fingerprinting Act requires the government to collect, analyze, and retain a DNA sample from anyone arrested for any federal crime. While law enforcement benefits from the increase in investigatory power, arrestees are now compelled to provide a DNA sample despite the pre-conviction presumption of innocence. This creates an ethical dilemma for those arrestees eventually found to be innocent of a particular crime, but nevertheless subsequently part of a national databank of DNA used for criminal investigations and raises the question of potential Fourth Amendment infringements and potential threats to genetic privacy.

DNA has been used by investigators to solve current cases from forensic evidence or solve old cases where the only remaining evidence was a DNA sample obtained from the crime scene. Likewise, DNA has been used by defense attorneys to prove false past allegations and has resulted in the release of a number of wrongly convicted persons. DNA identification using the CODIS database requires a probability of a false match that is less than the reciprocal of the U.S. population. (Bunce, 2005). Crime scene DNA is usually significantly degraded as a result of various environmental conditions and contamination. Despite this, the availability of polymerase chain reaction for the duplication of small strands of DNA have made false positives virtually impossible. Based on the typical number of loci matched and the number of base pairs and repeats at each matched location, the odds of a false positive using the CODIS statistical method approach one in a billion. (Human Genome Project [HGP], 2008).

A number of states and the US Supreme Court has recognized the availability of DNA to reopen the a crimanl case. The federal government and 44 states have laws allowing post-conviction DNA testing. (Liptak, 2008). A case in Alaska, one of the states that does not allow for post conviction testing has, as recently as Noevember 3, 2008, cause some controversy. The Supreme Court has decided to hear argument on a case from the 9th Circuit on whether convicted persons have a constitutional right to test DNA evidence that could prove their innocence. (Liptak, 2008).

In April, the United States Court of Appeals for the Ninth Circuit ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict one William G. Osborne of kidnapping and rape. The appeals court said that biological evidence — hairs and semen — could be subjected to more sophisticated DNA testing than had been used by the prosecution to implicate Mr. Osborne. (Liptak, 2008).

DNA profiling can also be used to identify victims of mass fatility incidents and has been used in such incidents as identifying the victims of the Southeast Asia tsunami (December 2004) and of Hurricane Katrina (August 2005). (President’s Initiative on DNA [PIDNA], 2008). The President’s Initiative on DNA notes that,

DNA analysis is the gold standard for identification of human remains from mass disasters. Particularly in the absence of traditional anthropological and other physical characteristics, forensic DNA typing allows for identification of any biological sample and the association of body parts, as long as sufficient DNA can be recovered from the samples. This is true even when the victim’s remains are fragmented and the DNA is degraded. While many effective laboratory protocols are available for DNA analysis, the analytical portion is only one part of the identification process.

DNA profiling is also a popular tool in genealogy (i.e. Family Tree DNA, which uses Y-SRT testing to determine paternal lineage and mitochondrial DNA testing (mtDNA) to determine maternal lineage. The DNA profiles can vary in the depth of ancetry analysis and the level of detail they provide. For example, A Y-DNA67, which tests the Y chromosome for genetic matches between males, could show a very tight ancestral connection. Matching sixty seven markers on each person's DNA strand means they have a common ancestor in recent history. (Family Tree DNA [FTDNA], 2008)

Other Issues

Despite the fact that the human genome has been mapped in its entirety, only about 1.4 percent of the DNA in the genome are believed to contain functioning or “coding” DNA. (Bunce, 2005) This leaves 98.6 percent of human DNA which is considered “non-coding” some of which may serve to regulate various physiological functions regulatory functions, some of which may be parasitic DNA from various viruses or artifacts of obsolete genes, and some of which may indicate a predisposition toward certain diseases. (Gibbons, 2001) It is the third characteristic that is particularly troubling when viewed in the context of privacy concerns.

The thirteen loci used by CODIS do not code for any known protein or indicate any known disease predisposition, as such they have improperly been described as “junk DNA.” (HGP, 2008) While not yet supported by empirical evidence the fact that, as noted above, these non-coding loci could eventually indicate a predisposition to a disease, taken together with the fact that the DNA information will be stored indefinitely on these various national DNA databases certainly gives privacy advocates reason to be concerned. Gibbons (2001) notes that the non-coding loci can already be used to determine parentage (using the same principal used to identify the person in the first place), and that a condition known as G6PD deficiency, which causes anemia has two variants that are directly associated with certain non-coding DNA near the G6PD gene.

To summarize, DNA analysis has come a long way and is a scientifically and legally accepted means for positive identification of individuals. While there have been scientific challenges to its use in the legal context, these challenges have largely been overcome in recent years through the use of PCR and the STR technique.

Challenges

The accuracy of DNA profiling raises ethical concerns in and of itself. That is, to the extent a test in which we as a society place so much trust in cannot in fact be trusted there is an opening (which many a defense attorney has taken advantage of) to contest ethical value of the test in the context of the criminal justice system and as a method for paternity testing (i.e. adjudicating any kind of legal right). The accuracy of DNA profiling has been challenged in a number of ways. Because the DNA used in criminal investigations are usually segments instead of full DNA strands it is statistically possible that the DNA profile may not be unique. The lack of uniform testing standards across numerous state and private laboratories together with the ever present potential for human error can lead to variations or even false results.

To read more click here.

Sports and Entertainment Law CLE Symposium

Scott Tran — Thu, 21 Apr 2011 20:26:18 +0100

At the Sports and Entertainment Law CLE Symposium held on Friday, April 1st, 2011 on Widener Law’s Delaware campus. . . . The TV and Film Panel examined the impact of piracy on the film industry as Thomas M. Dunlap, Esq. of Dunlap, Grubb, & Weaver and Barbara Mudge, President of Worldwide Film Entertainment, LLC, presented The Scope of Illegal Downloading and Film Piracy. Read more here.

Loudoun Chef's Collaborative Gourmet Dinner

Scott Tran — Thu, 21 Apr 2011 20:19:45 +0100

Attorney Tom Dunlap of Dunlap, Grubb & Weaver attended the Loudoun Chef's Collaborative Gourmet Dinner which raised more than $6,300 for the Loudoun Community Free Clinic which provides health care for the uninsured residents of Loudoun County. Tom has been a Board Member and sponsor of Free Clinic events for over eight years and has served as the founder and Chairman of the Free clinic's Annual 10K Run, more on the dinner here.

The 'Mechanic', 'Conan' Producers Hire US Copyright Group

Scott Tran — Wed, 02 Feb 2011 00:15:44 +0100

LOS ANGELES, California and WASHINGTON D.C. – January 28, 2011 – Nu Image, the production company behind such high profile films as last summer’s hit *The Expendables* (starring Sylvester Stallone), *The Mechanic* (opening today, starring Jason Statham), *Drive Angry 3D*(starring Nicholas Cage) and the highly anticipated remake of *Conan* currently scheduled for release in August 2011, has partnered with the US Copyright Group to prosecute illegal file sharing of its new releases. The US Copyright Group, owned and operated by Washington D.C.-based firm Dunlap, Grubb & Weaver, has made headlines during the last year with its innovative and wildly successful copyright protection and enforcement program, which targets and prosecutes illegal file sharing of its clients’ films.

As has been widely reported, the US Copyright Group monitors the illegal uploading and downloading of its clients’ motion pictures, obtains the identifying information for each alleged infringer, and then asserts a claim against those parties on behalf of its client for copyright infringement. While several firms have tried to replicate the success of the US Copyright Group with varying degrees of success, Dunlap, Grubb & Weaver is indisputably the market leader in combating copyright infringement on the Internet with a client film-base in excess of 350 feature films. The unique approach to fighting movie piracy taken by Dunlap, Grubb & Weaver resulted in one of its lead copyright attorneys, Thomas Dunlap, being named to the* Hollywood Reporter*’s 2010 list of 100 Power Lawyers in Entertainment.

Among the firm’s clients is Voltage Pictures, the studio behind ‘The Hurt Locker’ which won the 2010 Oscar® for Best Picture. In the weeks following the filing of a lawsuit against approximately 5,000 infringers of ‘The Hurt Locker’ last May and the many headlines that followed, illegal torrent-based file sharing of the film declined as much as 80%. Other films for which Dunlap, Grubb & Weaver have filed copyright infringement lawsuits have also seen a similarly dramatic decline in illegal sharing.

Nu Image has been proactive and aggressive in its approach to combating piracy by retaining the US Copyright Group to protect its entire slate of upcoming films prior to their release dates. “We are confident that by using our firm to monitor and prosecute infringement of its movies from the initial theatrical release through the subsequent release for home consumption, Nu Image will enjoy a consistently lower rate of online theft of its content,” says Thomas Dunlap. “Our goal is to deter infringement of Nu Image’s films from day one, and we intend to vigorously pursue claims against those individuals who illegally obtain or share our client’s titles.”

The US Copyright Group is in active discussions with several other high-profile film production companies regarding protection of their new releases. In the meantime, Dunlap, Grubb & Weaver continues the process of settling claims with thousands of infringers and pursuing individual lawsuits against internet pirates nationwide.

Anti-piracy in the Film Industry, Joinder, Personal Jurisdiction Issues in Copyright ...

Joseph Leon — Fri, 27 Aug 2010 02:53:31 +0100

A new study has stated that only 0.3% of files on BitTorrent file sharing services are confirmed to be legal:

http://arstechnica.com/tech-policy/news/2010/07/only-03-of-files-on-bit-torrent-confirmed-to-be-legal.ars

With such widespread illegal file sharing, some rights holders have turned to the courts looking for a remedy. Among the handful of recently filed cases, Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG and West Bay One, Inc. have filed copyright infringement lawsuits against thousands of anonymous doe defendants for the films Far Cry and The Steam Experiment a/k/a The Chaos Experiment, respectively – U.S. District Court for the District of Columbia Case Nos. 1:10-cv-00453-RMC and 1:10-cv-00481-RMC.

However, these cases recently came under attack by “amicus” organizations claiming to protect the rights of the doe defendants. The Electronic Frontier Foundation, Public Citizen, American Civil Liberties Union Foundation, and American Civil Liberties Union of the Nation’s Capital were permitted to enter the case as amici curiae in their effort to quash subpoenas served on various internet service providers that seek the identifying information of the doe defendants. These organizations argued that the plaintiffs were not entitlement to discovery of the identities of the doe defendants because (1) the court lacked personal jurisdiction, (2) all the doe defendants were improperly joined, and (3) the First Amendment required a heightened showing from the plaintiffs to obtain the discovery.

In a very unusual step the court, Honorable Judge Rosemary M. Collyer presiding, considered these arguments and held a lengthy hearing allowing amicus parties to brief the issue and appear in person presenting oral argument. In the end the court rejected all of the amicus arguments and allowed the plaintiffs to proceed with their cases as styled. The court summarily dismissed the First Amendment argument, noting that the doe defendants’ alleged conduct is not speech but rather the act of illegal copying and distribution of copyrighted material. The court considered significantly more argument when it came to the interplay of personal jurisdiction and joinder.

The court was not persuaded by the amicus organizations’ attempts to summarily determine personal jurisdiction for each doe defendant. The amicus organizations presented the same argument, and nearly identical declaration, that they supplied in Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), where that court similarly rejected the personal jurisdiction argument. As argued by the Thomas Dunlap for the plaintiffs, the offered technique of looking up the doe defendants’ IP addresses on publicly available databases provided a “likely” venue for the doe defendants, at best, and by no means presents sufficient evidence for anyone to determine the personal jurisdiction of any given doe defendant. Despite third party Time Warner’s statements that it had no clients in the Washington, DC jurisdiction, Judge Collyer further agreed with Dunlap’s two part argument that the nature of torrent file-sharing means that computers across the country simultaneously share information on one file by the thousands thus blurring the jurisdictional lines.

Similarly, the court did not agree that the doe defendants had been improperly joined at this stage of the lawsuit. Judge Collyer followed her colleague’s opinion, Honorable Judge Colleen Kollar-Kotelly, in Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008), that determination of the joinder issue is premature without first knowing the doe defendants’ identities and the actual facts and circumstances associated with their conduct.

Overall, the court recognized that the plaintiffs have a very legitimate interest in protecting their copyrighted materials and that the court has to take into account protecting the legal rights of the plaintiffs. To allay any concerns that the doe defendants would not be aware of the claims against them and that their identifying information was being sought from their ISPs, the plaintiffs agreed with the court that the ISPs would provide a standard notice.

Recruiting Highlights-Nicholas A. Kurtz

Joseph Leon — Fri, 27 Aug 2010 02:39:39 +0100

Nicholas A. Kurtz joined DGW as an associate in March 2010. Nick is a welcome addition to DGW's growing entertainment law practice area. Prior to joining the firm, Nick was a senior associate at a boutique litigation firm in Beverly Hills. There he specialized in entertainment, class actions, and complex business litigation matters and was selected for inclusion as a Rising Star in the 2009 Southern California Super Lawyers.

For example, Nick led the prosecution of federal class actions against the talent unions related to unpaid foreign levy monies (Richert et al. v. WGA; Webb v. DGA; Osmond v. SAG) and was awarded Rule 11 sanctions in securing the dismissal of a corporate defendant related to the promotional campaign of former Beach Boys artist Brian Wilson in a British newspaper. Nick also participated in arbitration cases, including against Marvel for credits on the films Ironman and The Incredible Hulk and the musical band Augustana for unpaid commissions, and previously handled intellectual property and corporate matters for the Academy of Country Music.

Nick earned a B.A. in Communications, Legal Institutions, Economics, and Government from American University in Washington, DC where he was a Presidential Scholarship recipient and a member of the School of Public Affairs Leadership Program and nationally ranked Division I varsity soccer team. He earned his J.D. from Loyola Law School, where he served as the Chief Research Editor on the Loyola of Los Angeles Entertainment Law Review and garnered a First Honors Award in his Title IX Seminar course.

HISTORIC CASE RECAP- Only Published Virginia Opinion on State Courts Jurisdiction over Federal ...

Joseph Leon — Fri, 27 Aug 2010 02:34:51 +0100

Can a plaintiff bring a claim for trademark infringement under the Federal(the "Lanham Act") in a Virginia state court? Up until 2006, no Virginia court had ever considered this issue, which involves the interplay between state and federal law.

In 2006, DGW, representing restaurant owners whose business model and brand were being copied by former employees that started up a competing restaurant, filed a lawsuit in Fairfax County asserting federal trademark infringement, state law trademark infringement, as well as other related claims. The defendant asserted that the Virginia court lacked jurisdiction to adjudicate the federal trademark claim and filed a motion to dismiss that claim.

Dunlap argued that, under federal law, state and federal courts are presumed to have concurrent jurisdiction over claims based in federal law (meaning that such a claim can be brought in either court), unless the federal law clearly states that the federal jurisdiction is exclusive. Although the federal law does provide for exclusive jurisdiction in federal copyright claims and federal patent claims, there is no such provision for federal trademark claims. The court agreed and denied the motion to dismiss, following several other states in concluding that state courts do have concurrent jurisdiction over federal trademark claims.

To date, this is the only published decision of any court in Virginia addressing this issue. This historic case is cited as a definitive statement of Virginia law in section 32:1 of Professor J. Thomas McCarthy's essential treatise on the law of trademarks and unfair competition.

DGW Overcomes EFF and ACLU s Attempt to Stifle Filmmakers Campaign against Internet Piracy

Joseph Leon — Fri, 27 Aug 2010 02:24:18 +0100

DGW recently scored a major victory in its ongoing fight on behalf of filmmakers to combat internet movie piracy. The firm, with the assistance of the intellectual property rights consortium The US Copyright Group, has filed several suits on behalf of the creators of The Hurt Locker, The Gray Man, Call of the Wild, and other titles. Because the people downloading these works on the internet can only be identified by their Internet Protocol ("IP") addresses, the only way they can be identified is by filing a "John Doe" complaint against them and then seeking their identifying information by serving subpoenas on those users' Internet Service Providers.

Although not a party to the case, the Electronic Frontier Foundation, the American Civil Liberties Union, and Public Citizen filed a brief with the DC District Court that is trying to stop these cases, seeking to prevent the filmmakers from enforcing their rights through these "John Doe" suits. The EFF asserted three reasons why they believe the suits are improper. First, they argued that all of the Doe defendants should not be grouped together in one lawsuit. Second, they argued that the District Court does not have jurisdiction over all the Doe defendants. And third, they argued that the infringers have a First Amendment right to speak anonymously on the internet and that such free speech fights should be extended to the act of piracy.

After full briefing on the issues, Judge Rosemary M. Collyer summoned the parties for a hearing to discuss EFF's arguments. Following oral argument, the Judge ruled in DGW's favor on all three points. The Judge found EFF's argument about a First Amendment right to infringe copyrights to be without merit. The Judge also dismissed EFF's personal jurisdiction argument as premature because, before the Doe defendants are identified, the Court and the parties have no way of determining whether jurisdiction is proper in this Court.

Judge Collyer spent the most time discussing the issue of joinder-whether it is proper to join numerous Doe defendants in a single case. EFF argued that each download is a discrete act of infringement that should be the subject of a separate lawsuit. DGW replied that EFF's position ignores the nuances of the BitTorrent file-sharing technology that was used by the infringers in these cases. Using BitTorrent software, an infringer connects to a group of hundreds or thousands of other users, all of whom are both uploading and downloading from one another simultaneously. Therefore, DGW argued, all of the Doe defendants were acting in concert in their infringement and were therefore properly joined in the same case. The Judge agreed and allowed DGW to proceed with its cases.

DGW Launches Catoctin Creek Distilling Company s Private Placement

Joseph Leon — Fri, 27 Aug 2010 02:16:24 +0100

Catoctin Creek Distilling Company is the first family-owned distillery in Loudoun County, Virginia since prohibition, producing award winning, high quality organic spirits and liqueurs. Catoctin Creek's products are flying off the shelves of regional VA ABC stores, and the company is struggling to meet the demand for its products. Accordingly, Catoctin Creek is currently seeking investors to raise approximately $3M for purposes of purchasing land to build a production facility that will enable it to double its production capacity. The company hopes to acquire land in Purcellville, Virginia, where it is currently located, and to construct a facility that will include a tasting room. A portion of the funds raised will also be used to acquire another still and other capital equipment.

DGW is currently assisting Catoctin Creek with a private placement offering of membership (ownership interests) in the company that will be made available to qualified investors. In short, the company is selling 49% of its ownership interests to raise the $3M, and a full business plan is ready and can be obtained from the company on a confidential basis. The legal documents for the private offering should be finalized in about 2-3 weeks. Interested investors can email info@catoctincreek.com for more information. You can read about Catoctin Creek and its products at http://www.catoctincreekdistilling.com/

DGW Helps Bring Baseball to Loudoun County

Joseph Leon — Fri, 27 Aug 2010 02:14:48 +0100

DGW is excited to be working with the newly named Loudoun baseball team to bring a minor league baseball team to Loudoun County, Virginia. The team's new stadium in Ashburn-Kincora Ballpark-has been approved by the County and is scheduled to be complete some time in 2011.

Advocates for Fundamental Property Rights of Homeowners in the Face of an Overreaching HOA

Joseph Leon — Fri, 27 Aug 2010 02:05:13 +0100

We all know that a homeowners association (HOA) can create rules regulating the uses of property within the association, but can an HOA amend its governing documents to alter fundamental property rights? This is the issue that has arisen in a litigation pending in Fairfax County, which is pending trial. DGW's clients filed suit against the HOA for implementing a discriminatory parking policy that prevented certain association members from parking in the majority of the common area parking spaces. The HOA attempted to avoid liability by amending its Declaration to allow for a discriminatory parking policy and then reenacting the policy under the amended declaration.

The problem for the HOA, DGW argued, is that all of the owners have an easement to use and enjoy all of the common areas equally. An easement is a property right that is recorded in the land records office and attaches to the property, passing from owner to owner. Unlike a rule about what colors homeowners can paint their houses, the HOA's amendment actually purported to alter this fundamental property right without the consent of the homeowners. DGW argued that, if an HOA could alter easement rights by amending a declaration, there would be nothing to prevent them from redrawing property lines or commandeering a portion of a homeowner's house or yard through such an amendment. In striking the HOA's affirmative defense based on the easement, the Fairfax Judge agreed with DGW and ruled that the amendment was unenforceable.

Firm Partner Named as Top 100 Power Lawyers by Hollywood Reporter

Joseph Leon — Fri, 27 Aug 2010 01:54:56 +0100

Tom Dunlap was recently selected by the Hollywood Reporter as one of Hollywood's 100 most powerful lawyers in litigation in the July edition of the Hollywood Reporter"2010 Top 100 Power Lawyers."

Here's what the Hollywood Reporter had to say in its profile of Tom:

Oct. 16 Casino Night Funds Cy Ranch Sports

Joseph Leon — Fri, 27 Aug 2010 01:42:33 +0100

Cypress Ranch athletic boosters are planning a “Boots & Bling” casino night 7 p.m. Oct. 16 to raise money for student athletes.

The event will include a dinner, Texas Hold ‘Em tournament, blackjack, craps and roulette. And while not at the gaming tables, guests can dance and bid on silent auction items.

Tickets are $40 and are available at the Mustang Corral, from any casino night committee member and at www.cypressranchmustangs.com.