LAW 6183 UO VSI & Government Case and The Appropriate Resolution Memorandum

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natvrpebhpu

Law

LAW 6183

University of Oklahoma

LAW

Description

Draft a memorandum outlining a proposed resolution for the VSI case.  Include in your memorandum an analysis of:

  1. What type of resolution is appropriate and why? (e.g., declination, non-prosecution agreement, deferred prosecution agreement)
  2. Should VSI be required to enter into a corporate integrity agreement or have a monitor and why?
  3. Should VSI be excluded from the industry?
  4. Should any individuals be held accountable? If so, who and why?

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LAW6183 Experiencing a Simulated Investigation Unit 7: Negotiating a Global Resolution John Richter & Peter Cooch Negotiating a Global Resolution Government and putative defendant have many ways to resolve dispute short of trial The parties might decide that a negotiated resolution is best for both sides In healthcare fraud prosecutions, company cannot afford risks associated with conviction or guilty plea due to exclusion Negotiating a Global Resolution Multiple government agencies might be involved in resolution Criminal prosecutors negotiate resolution of criminal charges Civil trail attorneys or civil AUSAs negotiate civil settlement agreements Office of General Counsel of HHS OIG handles issues involving exclusion and corporate integrity agreements Negotiating a Global Resolution Different considerations for individual and corporate settlements Cannot put a corporation in jail Corporate integrity agreements require companies to engage in specific corrective action Negotiating a Global Resolution Exclusion is usually a sticking point Company and individual must take care in announcing settlement to the public Lots of moving parts that can have important consequences for company moving forward LAW6183 Experiencing a Simulated Investigation Unit 7: Plea Agreements John Richter & Peter Cooch Plea Agreements If charges are appropriate, the government and defendant can resolve disputes without a trial Plea agreements allow for efficient resolution of cases Federal Rule of Criminal Procedure Rule 11 U.S. Attorney’s Manual permits government to enter into a plea agreement if defendant pleads guilty to charged offense or lesser or related offense Plea Agreements Three types of plea agreements: • Charge agreement • Sentencing agreement • Mixed agreement Prosecutors must consider many factors to determine whether a plea agreement is appropriate Plea Agreements Where plea agreement is appropriate, U.S. Attorney’s manual recommends that defendant be required to plead to a charge or charges: • That is the most serious, readily provable charge consistent with the nature of the conduct; • That has an adequate factual basis; • That makes likely the imposition of an appropriate sentence and order of restitution; and • Does not adversely affect the investigation or prosecution of others LAW6183 Experiencing a Simulated Investigation Unit 7: Exclusion and Alternative Resolutions John Richter & Peter Cooch Exclusion and Alternative Resolutions Participants in Medicare and Medicaid can be excluded Exclusion is a critical issue in the resolution of any civil or criminal investigation because it operates to effectively put an entity out of business Two types of exclusion: mandatory and permissive Exclusion and Alternative Resolutions Four grounds for mandatory exclusion by DHHS: • Conviction of program-related crimes • Conviction relating to patient abuse • Felony conviction relating to healthcare fraud • Felony conviction relating to controlled substance Exclusion and Alternative Resolutions Many grounds for permissive exclusion Examples include: • Misdemeanors relating to fraud • Revocation of license • Violation of the Anti-Kickback Statute Resolutions short of indictment or complaint are common due to risks of litigation, exclusion, and other factors Exclusion and Alternative Resolutions Non-prosecution agreements: • Agreement not to prosecute the individual • Often granted in exchange for cooperation • Cooperation must be timely, necessary to the public interested, and other means of obtaining desired cooperation are unavailable/not effective • A prosecutor must consider many factors Exclusion and Alternative Resolutions Deferred prosecution agreements • Agreement between government and putative defendant • Deferral of criminal charges for a specific period of time, which are dismissed upon compliance with terms of agreement • Viewed as more serious than a non-prosecution agreement LAW6183 Experiencing a Simulated Investigation Unit 7: The Charging Decision John Richter & Peter Cooch The Charging Decision Upon completion of investigation, government must decide whether it should pursue civil claims or criminal charges Prosecutors have discretion to bring criminal charges DOJ has side latitude to determine when, whom, how, and whether to prosecute violations of law The Charging Decision Health care fraud can implicate many different statutes The U.S. Attorney’s Manual provides guidance to federal prosecutors Principles of Federal Prosecution is a statement of policies and practices concerning prosecution of violations of federal law The Charging Decision Principles of Federal Prosecution assist with decision to: • Initiate or decline a prosecution • Select appropriate charges • Enter into plea agreements • Oppose offers to plead nolo contendere • Enter in to non-prosecution agreements • Participate in sentencing The Charging Decision Principles of Federal Prosecution of Business Organizations Additional considerations when deciding whether to prosecute a business entity Examples: • Pervasiveness of wrongdoing within the company • Company’s history of similar misconduct • Company’s timely and voluntary disclosure of wrongdoing The Charging Decision U.S. Attorney’s Manual recommends pursuing the “most serious, readily provable offenses.” Recommends bringing charges for other offenses only when such additional charges: • Are necessary to ensure indictment adequately reflects nature and extent of criminal conduct; • Provides basis for appropriate sentencing; or • Will significantly enhance strength of the government’s case
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Explanation & Answer

View attached explanation and answer. Let me know if you have any questions.

Running Head: MEMORANDUM

1

MEMORANDUM
Student Name
School
Dated

MEMORANDUM

2

Outline
Subject: Proposal for the appropriate resolution


The company needs to answer all the allegations, and the settlement will only be
successful if the company has the clarification. The settlement is a compromise, and the
court should also know the whole truth, so accountability is held. On a serious note, it is
necessary for the jury to make the decision in the company's interests and to save the
health of people.



The medical industry and laws are important, so the company needs to be careful. All the
individuals included in the false packaging, labeling, and distribution will also be
accountable. The court will check all the steps involved in preparing and selling medical
products and will look for accountable individuals.



Concluding the proposal, it is recommended to protect the company's reputation. The
company can do it by itself. There are different issues, and the legal claims that the
company has faced were presented according to the legal standards and proofs. It is
recommended for the company to show the guilt on those claims and propose the
settlement agreement or resolution.



In the settlement agreement, it is recommended to make a compromise. The court settles
to end the trial, and the company should propose to pay the liable charges and act
according to the court's instructions. The settlement is necessary because it is observed
that the company will have to face the defamation of its products, and the court could
continue the trials to the final decisions. So, the settlement agreement will be observed
and considered.

MEMORANDUM

3


Running Head: MEMORANDUM

1

MEMORANDUM
Student Name
School
Dated

MEMORANDUM

2

To
-----------From
----Address
Dated
Subject: Proposal for the appropriate resolution
Dear Members,
Information about case
This memorandum proposed a solution for the VSI and government case. Before
discussing the proposal, let us have a look at the case. A case was filed in the Supreme Court
referring Vascular Solutions Inc to the defendants. The company sells FDA-approved Vari-Lace
devices for the perforated veins. Medical devices are used to close the perforated veins. The
company claims that all the products ar...


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