President Trump Signs Veteran Affairs Whistleblower Legislation

On June 23, 2017, President Trump signed into law the "VA Accountability and Whistleblower Protection Act of 2017," designed to enhance whistleblower protections, lowering the standard from a "preponderance of evidence" to "substantial evidence" of retaliation before the secretary of the VA can take action. The law further allows the VA to take back bonuses paid to employees found guilty of misconduct and prohibits employees who are appealing discipline from being placed on paid administrative leave. The Act focuses on placing a higher standard of accountability upon executives, rather than rank-and-file workers.

President Trump proclaimed that the law represents one of the biggest reforms to the VA in a generation, and promised further steps to transform the VA “until the job is done.”

Breaking News: Takata Files for Bankruptcy

Japanese airbag manufacturer Takata Corp. has filed for bankruptcy protection in the U.S., claiming it was the only way it could continue to recall and replace defective airbags linked to 16 deaths. 

Takata's inflators can explode with too much force when they fill up an air bag, spewing out shrapnel. Apart from the fatalities, they're responsible for at least 180 injuries worldwide.

The dangers of Takata airbags came to light in late 2014 when a whistleblower, who had worked as an engineer at Takata for years, came forward requesting to testify his concerns to Congress. Shortly thereafter, Congress passed the Motor Vehicle Safety Whistleblowers Act, encouraging similar whistleblowers with concerns about automotive safety to report them to the government. (For more details, see this blog about the MVSWA.)

SCOTUS Strikes Down Trademarks Disparagement Clause

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate.” - Justice Samuel Alito Jr.

In news not related to the False Claims Act, the Supreme Court has ruled that the Lanham Act's "Disparagement Clause"--which bars the registration of "offensive" trademarks--is unconstitutional because it violates the First Amendment. The suit was brought by Simon Tam, lead singer of the Asian-American band "The Slants," after the U.S. Trademark Office rejected his application to trademark the name because it was disparaging to those of Asian descent. As a result, other bands were able to use the name without repercussion.

This case was recently featured on NPR's "Planet Money" podcast (which I highly recommend), which explained that the USPTO's decisions as to what is and is not offensive often comes down to a single examiner and his or her subjective views.

The case has been watched closely by the Washington Redskins, who filed an amicus brief on behalf of the Slants, who of course have been the subject of much controversy over the use of their name. A case against the Redskins is currently pending before the Fourth Circuit.

Bracker & Marcus LLC and its members express no opinion as to the propriety of the Washington Redskins trademark.

Bracker & Marcus Make Headlines with a Case of Section 8 Housing Fraud

Bracker & Marcus LLC and its co-counsel, Jill S. Schwartz & Associates, represent Relator Debra Leggins in a lawsuit against Orlando Housing Authority. OHA is alleged to have mishandled Section 8 funding--meant to be used to revitalize impoverished communities and --by using those funds to instead cater lunches, throw lavish parties, and inappropriately award bids to friends.

This case was recently covered by Orlando Sentinel and Fox 35 news in Orlando. The article and video can be seen here. We are happy to represent Debra in the Middle District of Florida.

States Want Their Share of Medicare Part D Recoveries

On May 17, 2017, 49 state attorney generals signed a letter to the Senate Finance Committee requesting appropriate legislation to allow for sharing of the Part D recoveries with the states.

Prior to January 2006, state Medicaid programs paid directly for outpatient prescription drug benefits for individuals covered by both Medicare and Medicaid. Because Medicaid is jointly funded, those payments included both federal and state dollars. If a state received a Medicaid recovery, it would share that recovery by remitting the federal portion of that recovery to the Federal government.

Since 2006, under Medicare Part D, the federal government now pays directly for these Part D drugs. However, the states still share in the costs through substantial monthly "clawback" payments. These payments stem from fraud and overpayment cases involving Part D drugs.

Over the last 10 years the states have contributed a combined total of approximately $80 billion in "clawback" payments to the Medicare Part D program. In 2017, those payments are expected to be over $11 billion. Despite their significant contribution, the states have yet to receive a single dollar from the recoveries.