The Obama Administration will not seek U.S. Supreme Court review of an appeals court decision dismissing criminal charges against an employee who allegedly downloaded confidential data from his employer for purposes of starting his own business. The appeals court threw out charges under the Computer Fraud and Abuse Act (CFAA).
David Nosal, a former managing director at executive search firm Korn/Ferry International was indicted for allegedly persuading colleagues to download confidential information from the employer before leaving to start his new business.
The charges included alleged violations of Section 1030(a)(4) of the CFAA for knowingly and with intent to defraud, accessing a protected computer without authorization, or exceeding authorized access, and by means of such conduct furthering the intended fraud and obtaining anything of value. 18 USC § 1030 (a)(4)).
Three co-workers pleaded guilty to CFAA violations, but Nosal argued that the charges should be dismissed because the CFAA was intended to address computer hackers and "does not cover employees who misappropriate information or who violate contractual confidentiality agreements." He also argued that the CFAA does not extend to employees had authorization to access the information, even if their subsequent or intended use of the information was not authorized.
The en banc U.S. Court of Appeals for the Ninth Circuit agreed, ruling 9-2 that the CFAA charges should be dismissed. The court held that the CFAA does "not extend to violations of [website and company policy] use restrictions” and that the CFAA’s “exceeds authorized access” requirement is limited to “violations of restrictions on access to information, and not restrictions on its use.”
Now that the government has decided not to seek review of the decision by the U.S. Supreme Court, the Ninth Circuit’s ruling will stand, at least in the States of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and at least until the Supreme Court gets to decide the issue in another case.
John Howley
New York, New York
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Wednesday, August 8, 2012
Tuesday, July 31, 2012
Drug Distributor Agrees to $151 Million False Claims Act Settlement
Drug distribution company McKesson Corporation will pay $151 million in restitution to several states for over-billing Medicaid programs. New York State will receive $64 million of the multi-state settlement.
The settlement resolves charges that McKesson violated state and federal False Claims Acts by reporting inflated pricing information for over 1,400 brand name prescription medications, causing the states' Medicaid programs to overpay for those drugs.
The drug pricing data at issue relate to the “Average Wholesale Price” (AWP) benchmark used by most states to set payment rates for pharmaceuticals. The settlement today is based on the charges that McKesson reported inflated mark-up percentages to FDB for hundreds of brand name drugs, causing FDB to publish inflated AWPs for those drugs. The investigation revealed that McKesson inflated the prices of over 1,400 brand name drugs, including commonly prescribed medications such as Adderall, Allegra, Ambien, Celexa, Lipitor, Neurontin, Prevacid, Prozac, and Ritalin.
The states alleged that for several years ending in 2009, McKesson, a large drug distributor, reported inflated pricing data to First Data Bank (FDB), a publisher of drug prices that are used by states to set payment rates for pharmaceutical reimbursement under Medicaid.
In April, the federal government reached an agreement with McKesson to resolve claims that the federal portion of Medicaid overpaid for these drugs. The latest settlement agreement resolves the state portion of Medicaid for New York and 29 other states.
John Howley
New York, New York
The settlement resolves charges that McKesson violated state and federal False Claims Acts by reporting inflated pricing information for over 1,400 brand name prescription medications, causing the states' Medicaid programs to overpay for those drugs.
The drug pricing data at issue relate to the “Average Wholesale Price” (AWP) benchmark used by most states to set payment rates for pharmaceuticals. The settlement today is based on the charges that McKesson reported inflated mark-up percentages to FDB for hundreds of brand name drugs, causing FDB to publish inflated AWPs for those drugs. The investigation revealed that McKesson inflated the prices of over 1,400 brand name drugs, including commonly prescribed medications such as Adderall, Allegra, Ambien, Celexa, Lipitor, Neurontin, Prevacid, Prozac, and Ritalin.
The states alleged that for several years ending in 2009, McKesson, a large drug distributor, reported inflated pricing data to First Data Bank (FDB), a publisher of drug prices that are used by states to set payment rates for pharmaceutical reimbursement under Medicaid.
In April, the federal government reached an agreement with McKesson to resolve claims that the federal portion of Medicaid overpaid for these drugs. The latest settlement agreement resolves the state portion of Medicaid for New York and 29 other states.
John Howley
New York, New York
Saturday, June 23, 2012
Brazil's Commercial Diplomacy in the Middle East and Africa
The Global Voices blog has an interesting post on Brazil's commercial diplomacy in the Middle East and Africa. Originally written in Portuguese, Global Voices posted an English translation here.
Blogger Richard de Araujo describes how Brazil's foreign policy in the Middle East and Africa is driven by what one Brazilian Ambassador calls "prospects for a policy of commercial promotion."
Brazil's economy is the sixth largest in the world based on GDP, and with growth averaging about 5% it is expected to become the fifth largest economy in the world by the end of this year. Exports account for 14% of Brazil's GDP.
Up to now, Brazil's primary trading partners have been countries in Latin America, the European Union, China, and the United States. As the Global Voices blog post points out, this may be starting to change. The author quotes Brazilian Ambassador Hadil da Rocha Vianna, Under-Secretary-General of the Brazilian Ministry of External Relations, as saying that "the Brazilian government is convinced that an increase in partnership with different regions of the planet must play a central role in its commercial diplomacy."
According to the author, this emphasis on commercial diplomacy in the Middle East and Africa is having an impact on international relations far beyond Brazil. It explains why former Brazilian President Lula visited the region early in his term, why he organized the first South America-Arab Countries (ASPA) summit meeting in Brazil, and why Brazil has become involved more broadly in Middle Eastern politics and diplomacy, including making proposals to avoid sanctions on Iran and taking an active role in mediation of the Israel-Palestine conflict.
The numbers tell a compelling story. Brazilian exports to the Middle East have increased from only US$ 2.3 billion in 2005 to US$ 10.5 billion today. With tangible results such as these, the author predicts even greater Brazilian involvement in the region, including the potential for Brazil "to take sides and even involve [itself] militarily to defend the interests of [its] corporations."
John Howley, Esq.
New York, New York
Blogger Richard de Araujo describes how Brazil's foreign policy in the Middle East and Africa is driven by what one Brazilian Ambassador calls "prospects for a policy of commercial promotion."
Brazil's economy is the sixth largest in the world based on GDP, and with growth averaging about 5% it is expected to become the fifth largest economy in the world by the end of this year. Exports account for 14% of Brazil's GDP.
Up to now, Brazil's primary trading partners have been countries in Latin America, the European Union, China, and the United States. As the Global Voices blog post points out, this may be starting to change. The author quotes Brazilian Ambassador Hadil da Rocha Vianna, Under-Secretary-General of the Brazilian Ministry of External Relations, as saying that "the Brazilian government is convinced that an increase in partnership with different regions of the planet must play a central role in its commercial diplomacy."
According to the author, this emphasis on commercial diplomacy in the Middle East and Africa is having an impact on international relations far beyond Brazil. It explains why former Brazilian President Lula visited the region early in his term, why he organized the first South America-Arab Countries (ASPA) summit meeting in Brazil, and why Brazil has become involved more broadly in Middle Eastern politics and diplomacy, including making proposals to avoid sanctions on Iran and taking an active role in mediation of the Israel-Palestine conflict.
The numbers tell a compelling story. Brazilian exports to the Middle East have increased from only US$ 2.3 billion in 2005 to US$ 10.5 billion today. With tangible results such as these, the author predicts even greater Brazilian involvement in the region, including the potential for Brazil "to take sides and even involve [itself] militarily to defend the interests of [its] corporations."
John Howley, Esq.
New York, New York
Thursday, June 21, 2012
US State Department Promotes Defense Exports
The U.S. State Department recently issued a press release boasting of its successes in the area of U.S. military exports. According to the release, the State Department's Bureau of Political-Military Affairs takes advantage of every opportunity with allies and
partners to expand our nation's exports of defense-related products and services:
"Senior Department officials, including U.S. Ambassadors, actively advocate on behalf of U.S. bidders on foreign government and foreign military procurements. We do so when we meet with officials on our travels abroad, on the margins of international conferences, and in regular diplomatic encounters and correspondence with foreign government officials."
Defense-related sales fall generally into two categories. One type of sale involves government-to-government transfers through Foreign Military Sales (FMS). These types of sales have exceeded $30 billion annually for the past four years, with a 9% increase in 2011.
The other type of defense-related sales is known as Direct Commercial Sales (DCS), which involve countries purchasing systems directly from U.S. companies. DCS to foreign governments exceeded $44 billion in 2011.
The State Department is optimistic that this sector of the U.S. export economy will continue to grow with more emerging markets looking to modernize and expand their domestic defense capabilities. India, Brazil, Saudi Arabia, Indonesia, Malaysia, and Singapore are among the nations mentioned in the State Department release as having growth potential over the coming years.
Defense exports are unique in the sense that they are vital not only to our economic prosperity, but also to our national security. The State Department, however, has a larger commercial diplomacy agenda that includes many other industries. Promoting and protecting private U.S. business interests in foreign markets helps create and sustain jobs at home.
John Howley, Esq.
New York, New York
"Senior Department officials, including U.S. Ambassadors, actively advocate on behalf of U.S. bidders on foreign government and foreign military procurements. We do so when we meet with officials on our travels abroad, on the margins of international conferences, and in regular diplomatic encounters and correspondence with foreign government officials."
Defense-related sales fall generally into two categories. One type of sale involves government-to-government transfers through Foreign Military Sales (FMS). These types of sales have exceeded $30 billion annually for the past four years, with a 9% increase in 2011.
The other type of defense-related sales is known as Direct Commercial Sales (DCS), which involve countries purchasing systems directly from U.S. companies. DCS to foreign governments exceeded $44 billion in 2011.
The State Department is optimistic that this sector of the U.S. export economy will continue to grow with more emerging markets looking to modernize and expand their domestic defense capabilities. India, Brazil, Saudi Arabia, Indonesia, Malaysia, and Singapore are among the nations mentioned in the State Department release as having growth potential over the coming years.
Defense exports are unique in the sense that they are vital not only to our economic prosperity, but also to our national security. The State Department, however, has a larger commercial diplomacy agenda that includes many other industries. Promoting and protecting private U.S. business interests in foreign markets helps create and sustain jobs at home.
John Howley, Esq.
New York, New York
Wednesday, June 6, 2012
USTDA Promotes Emergency Preparedness Business Opportunities and Solutions in ASEAN
The United States Trade and Development Agency (USTDA) is attempting to do well for American business by helping the ASEAN region do some good for people threatened by natural disasters.
A recent USTDA workshop in Bangkok brought together more than 140 senior officials and experts from throughout Southeast Asia and the United States to address critical topics in disaster preparedness and response. This workshop was the first concrete step in an ASEAN-U.S. Connectivity Cooperation Initiative announced during the ASEAN-U.S. Leaders Meeting held in Indonesia in November 2011.
Disaster risk reduction and sharing of information, technology, and best practices are growing priorities in the strategically important and growing ASEAN region. Countries in this region often experience floods, earthquakes, volcanic eruptions, and other natural disasters.
In response to ASEAN’s need for greater regional disaster management cooperation, the ASEAN Disaster Management, Mitigation, and Response Technologies Workshop was designed to promote best practices and use of U.S. disaster management, response and mitigation technologies in Southeast Asian countries. Topics on the agenda included: professional disaster preparedness, response and mitigation strategies; early warning, flood forecasting, and weather modeling systems; technologies and best practices in data collection and integration systems and emergency management communication; structural engineering solutions; search and rescue operations; and disaster management capacity building.
This initiative is typical of USTDA's work -- which is centered on creating jobs at employers back home in the U.S. while helping emerging economies address critical development needs. USTDA promotes economic growth in emerging economies by facilitating the participation of U.S. businesses in the planning and execution of priority development projects in host countries. The Agency’s objectives are to help build the infrastructure for trade, match U.S. technological expertise with overseas development needs, and help create lasting business partnerships between the United States and emerging market economies.
More than 60 U.S. companies participated in the inaugural Bangkok event. Participants included companies involved in all phases of emergency response, including information communications technology, emergency response infrastructure engineering, and manufacturing.
John Howley
New York, New York
A recent USTDA workshop in Bangkok brought together more than 140 senior officials and experts from throughout Southeast Asia and the United States to address critical topics in disaster preparedness and response. This workshop was the first concrete step in an ASEAN-U.S. Connectivity Cooperation Initiative announced during the ASEAN-U.S. Leaders Meeting held in Indonesia in November 2011.
Disaster risk reduction and sharing of information, technology, and best practices are growing priorities in the strategically important and growing ASEAN region. Countries in this region often experience floods, earthquakes, volcanic eruptions, and other natural disasters.
In response to ASEAN’s need for greater regional disaster management cooperation, the ASEAN Disaster Management, Mitigation, and Response Technologies Workshop was designed to promote best practices and use of U.S. disaster management, response and mitigation technologies in Southeast Asian countries. Topics on the agenda included: professional disaster preparedness, response and mitigation strategies; early warning, flood forecasting, and weather modeling systems; technologies and best practices in data collection and integration systems and emergency management communication; structural engineering solutions; search and rescue operations; and disaster management capacity building.
This initiative is typical of USTDA's work -- which is centered on creating jobs at employers back home in the U.S. while helping emerging economies address critical development needs. USTDA promotes economic growth in emerging economies by facilitating the participation of U.S. businesses in the planning and execution of priority development projects in host countries. The Agency’s objectives are to help build the infrastructure for trade, match U.S. technological expertise with overseas development needs, and help create lasting business partnerships between the United States and emerging market economies.
More than 60 U.S. companies participated in the inaugural Bangkok event. Participants included companies involved in all phases of emergency response, including information communications technology, emergency response infrastructure engineering, and manufacturing.
John Howley
New York, New York
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