Overpayment audits of physicians are common place and, indeed, should now be expected. When conducting such audits, Medicare auditors often include not only random sampling as an audit technique but have also extrapolated the results of that random sampling to arrive at overpayment claims that can be much larger. But is extrapolation legal? In a public payor (i.e., Medicare) audit, the answer is yes. For example, the Medicare Managed Care Manual not only requires that Medicare Advantage plans develop auditing systems, it specifically recognizes that auditors may extrapolate the ...
In 1995, the Private Securities Litigation Reform Act ("PSLRA") was passed to limit frivolous and unwarranted securities lawsuits. 15 U.S.C. §78u-4. While private securities litigation is an indispensable tool in which defrauded investors can recover their losses, such litigation has led to nuisance filings, targeting of deep-pocket defendants, and vexatious discovery requests in attempts to, among other things, extort large settlements. SeeMerrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006). To combat these actions, the PSLRA changed the pleading ...
The SEC famously announced last year that it would insist upon admissions in settled cases involving egregious conduct - instead of its long-standing "neither admit nor deny" rubric. But its recent Scottrade action has the industry wondering if Commission staff are adhering to that standard. Scottrade entered an Offer of Settlement in administrative proceedings, admitting the Commission's factual and legal findings of books-and-records violations. A software code change in March 2006 inadvertently caused Scottrade's system to omit Error Account trades from its ...
The Financial Industry Regulatory Authority ("FINRA") has, in recent months, increased its regulatory focus on investor awareness regarding closed-end funds ("CEFs"). In October of last year, FINRA issued an Investor Alert entitled "Closed-End Fund Distributions: Where is the Money Coming From." The alert sought to educate investors about CEFs and, specifically, about the sources of the periodic guaranteed distributions that make CEFs attractive to investors. This alert followed on the heels (relatively speaking) of six-figure fines levied against Merrill Lynch and UBS in ...
FINRA has submitted a proposal to the SEC to adopt FINRA Rule 2243 (Disclosure and Reporting Obligations Related to Recruitment Practices). In FINRA's words, Rule 2243 would require, in some cases, "specific disclosure by the recruiting member firm of the financial incentives a representative receives as part of his or her relationship with the new firm. The recruiting member firm would be required to provide the disclosure before a former retail customer of the representative makes a final determination to transfer an account to the new firm." Specifically, disclosure would be ...
In back-to-back keynote addresses Monday to the Securities & Financial Markets Association's annual Compliance & Legal meeting, SEC-Chair Mary Jo White and Southern District of New York US Attorney Preet Bharara renewed the federal government's emphasis on securities enforcement actions. White emphasized the complimentary effect of the SEC's civil-enforcement abilities in parallel proceedings with Department of Justice criminal prosecutions, noting that parallel proceedings and criminal referrals have doubled over the past few years. The Commission continues to ...
Effective July 5, 2014, the Municipal Securities Rulemaking Board ("MSRB") implements a consolidation and re-write of its prior fail-dealing Rules and Guidance for municipal securities dealers. On March 7, the SEC approved: - Revisions to Rule G-19 on suitability. The revisions harmonize the Rule with FINRA's suitability Rule 2111, including its "reasonable-basis," "customer-specific" - including investment profile, "quantitative" (f/k/a churning), "investment strategies" (including explicit hold recommendations), with accompanying technical changes ...
This past February, FINRA issued an acceptance, waiver and consent ("AWC") against a firm and its global anti-money laundering ("AML") Compliance Officer ("CO") for failures in AML compliance regarding brokerage and custodial DVP transactions in penny stocks and unregistered securities through omnibus bank-customer accounts in "known bank-secrecy havens, such as Switzerland, Guernsey and Jersey." FINRA censured the firm and fined it $8 million, and issued an individual one-month suspension and $25,000 fine to its AML CO. The firm is exiting its equity brokerage ...
A camel (so the saying goes) is a horse designed by committee. It seems the Supreme Court may think the same of the whistleblower provisions in § 806 of the Sarbanes-Oxley Act of 2002. Section 806 prohibits retaliatory employment action against a whistleblower by any public company, "or any …contractor [or] subcontractor … of such company…." 18 U.S.C. § 1514A(a). The Act also provides an EEOC-like private administrative action administered by Labor's OSHA and its administrative review board. Recall that Sarbanes-Oxley was a response to the notorious Enron experience in ...
The familiar "in connection with the purchase or sale" securities-litigation requirement may not be unlimited in its breadth, after all. On February 26, the US Supreme Court pulled up short defendants in litigation by investors in the bank CDs at the heart of Allen Stanford's Ponzi scheme. In four separate class actions (two in USDC-NDTX and two removed from Louisiana state court, but consolidated by the JPMDL) investors brought state-law securities and related claims - apparently hoping to avoid stricter Federal-law pleading requirements, and limits on private ...
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