SAN FRANCISCO — The recent arrest of an Akin Gump Strauss Hauer & Feld partner on charges he tried to hawk a sealed qui tam complaint to the target company is causing whistleblower lawyers who worked with Jeffrey Wertkin while he was at the U.S. Department of Justice to take a fresh look at their own cases.
The lawyers said Wertkin’s role at the Justice Department was pivotal in False Claims Act litigation. Wertkin’s input was a critical factor in whether whistleblower actions were taken up or declined by the government, they said, and he also helped lead a trial in a groundbreaking fraud case that the DOJ did decide to pursue.
Describing Wertkin as hard-working, earnest and family-oriented, relator attorneys reacted Thursday with bewilderment and unease to the criminal allegations, as they puzzled over how he could have instigated such a scheme and whether similar leaks might have impaired their own cases.
“This is not just some functionary who happened to get a hold of a complaint. This is somebody who had a lot of responsibility at DOJ and involved in some of their most important cases,” said David Stone, senior managing partner at Stone & Magnanini in New Jersey.
Stone is involved in an ongoing False Claims Act case against Medco Health Solutions, in which the government declined to intervene. Wertkin’s input, Stone said, was a “substantial” factor in that decision. The attorney offered no suggestion that there was any suspicious behavior on Wertkin’s part during that process but said that the recent allegations have left him wondering.
“The big question here is, is this the first time he’s done this or is this a pattern of something that he started when he was at DOJ?” Stone said. “If this is a pattern then these declination decisions in all these cases that he was a senior DOJ supervisor on are in question.”
In an email Thursday, DOJ spokeswoman Nicole Navas declined to comment on whether the department is conducting an investigation into Wertkin’s past cases.
Nola Hitchcock Cross, a whistleblower lawyer in Milwaukee at the Cross Law Firm who worked alongside Wertkin, said that she had spoken to attorneys at Main Justice since the news broke of his arrest. “I think everyone there, as [with] everyone who has dealt on the plaintiff side with Jeff, is just shocked,” Cross said in an interview.
Wertkin helped lead the trial team in a case initiated by Cross and Alabama firm Frohsin Barger & Walthall that involved an alleged scheme of hospice service providers defrauding the government by taking reimbursements for ineligible patients. Wertkin’s wife attended a portion of the trial, Cross said, and he consistently worked late and was up in the early morning. (The judge tossed out a jury verdict in favor of the government; that decision is now before the U.S. Court of Appeals for the Eleventh Circuit.)
“I can say that in my experience working alongside Jeff Wertkin, he was a tireless advocate for the people of the United States. The recent allegations against him are far beneath the man that I know and respect, an intelligent, ambitious trial attorney dedicated to his family and to the proper administration of justice,” Jim Barger Jr. of Frohsin Barger & Walthall said in an email.
“These allegations don’t make sense to me on many so many levels, and I have to believe there is more to this story—we’ll have to wait and see what unfolds,” Barger added.
Wertkin was arrested by the FBI on Jan. 31 at a hotel in Cupertino, California, as he tried to make a hand off of the complaint to an undercover agent. He had earlier contacted the target company and offered to sell the document for $310,000, according to an FBI affidavit. The company instead notified the authorities and cooperated in helping set up the sting.
If the allegations against Wertkin are true, it remains unclear how he obtained the copy of the sealed complaint, which was aimed at an unamed technology security company based in Sunnyvale, California, according to an FBI affidavit. The whistleblower complaint was filed in January 2016 and Wertkin left to become a partner at Akin Gump in April 2016, so it’s conceivable that he retained the document before he left or that he got it through a contact at the DOJ.
A review of federal court cases filed since 2011 shows that Wertkin was involved in at least seven False Claims Act-related matters. Aside from Stone’s case and the hospice case, two were motions to enforce a subpoena, and two were fraud cases against drug manufacturer AstraZeneca. The drugmaker paid $7.9 million in 2015 to settle kickback allegations and the cases were voluntarily dismissed.
Since joining Akin Gump, Wertkin has appeared as defense counsel for Methodist Healthcare Systems in a False Claims Act case initated in 2013. The government has so far declined to intervene in that case.
“I have no evidence either way what actions in violation of the seal, if any, Mr. Wertkin took with respect to our case,” Robin Potter, relator’s counsel at Robin Potter & Associates in Chicago, said in an email Thursday.