(Photo by Rebecca Breyer)
A company that admits to being a coconspirator can’t claim to be a victim of its own crime.
That’s what the U.S. Court of Appeals for the Eleventh Circuit ruled Friday when it denied a petition for a writ of mandamus by WellCare Health Plans Inc.’s lawyers at Greenberg Traurig. WellCare asked that it be declared a victim by the court and paid restitution by former executives convicted of health care fraud.
Last June a federal jury in Tampa found WellCare’s former CEO Todd Farha, former CFO Paul Behrens and former government affairs executive William Kale guilty in a scheme to defraud Florida’s Agency for Health Care Administration. In April the company’s lawyers at Greenberg and Venable asked U.S. District Judge James Moody Jr., who’s overseeing the executives’ criminal case, to grant WellCare restitution under the Crime Victims’ Rights Act and the Mandatory Victims Restitution Act of 1996.
The company claimed the executives’ fraud cost WellCare hundreds of millions of dollars associated with restating financial statements, conducting internal investigations, cooperating with federal prosecutors and defending itself against civil lawsuits. On top of that, the convicted executives were paid more than $134 million in compensation during the course of the conspiracy, according to its motion. But Moody denied WellCare’s motion last month without issuing a written opinion.
Following Moody’s decision, Greenberg’s Gregory Kehoe filed a petition for a writ of mandamus under the CVRA, which provides for an expedited review when a district court denies restitution. The executives’ lawyers—MoloLamken’s Jeffery Lamken for Behrens, Wilmer Cutler Picker Hale and Dorr’s Seth Waxman for Farha and Lerch, Early & Brewer’s Stanley Reed for Kale—replied with this brief, pointing out that prosecutors had designated WellCare an unindicted coconspirator. The company entered a deferred prosecution agreement and accepted responsibility for its role in the scheme.
“A coconspirator who admits to committing an alleged fraud, enters into a deferred prosecution agreement for the alleged fraud and pays restitution for it is not a ‘victim’ of that very same alleged fraud,” the executives’ lawyers wrote.
The Eleventh Circuit agreed. “By asking for restitution from its top-level executives, WellCare seeks restitution for its own conduct—something it cannot do,” the two-judge panel wrote.
Greenberg’s Kehoe didn’t immediately respond to our request for comment. The primary appellate lawyers for the executives weren’t immediately available. But John Lauro of the Lauro Law Firm, who represented Behrens at trial, told us the decision sends a “really clear message.”
“If a company is going to enter into a deferred prosecution agreement, then it can’t later turn on its executive team and seek restitution,” Lauro says.