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Both sides have filed their appeals briefs in the much-watched Oxycontin case, in which ex-general counsel Howard Udell and two other Purdue Pharma executives are fighting for the right to work in healthcare again. The former executives—GC Udell, CEO Michael Friedman, and chief medical officer Paul Goldenheim—were debarred from working in healthcare for 12 years after being convicted in 2007 of a criminal misdemeanor. At issue is whether the government can debar executives from working at companies with government contracts, such as Medicare, based on the so-called “responsible corporate officer doctrine.” The doctrine says, in effect, that an executive can be convicted of a criminal misdemeanor even if he personally did nothing wrong but failed to detect and stop those who did. In this case, the company misled consumers and the government about the strength and addictive properties of Oxycontin. The brief filed on Wednesday by Udell’s group challenges a December 2010 order by District Court judge Ellen Huvelle in Washington, D.C., that upheld the debarment. Udell’s group is represented by Jonathan Abram of Hogan Lovells, and by Carter Phillips of Sidley Austin, both based in Washington. Defendants are Kathleen Sibelius, secretary of the Health and Human Services Department, and Daniel Levinson, the department’s inspector general. They are both represented by U.S. attorney Ronald Machen, Jr. The two sides also disagree over whether the Purdue executives were convicted of excludable crimes, whether the secretary of HHS applied the exclusion statute correctly, and whether their debarments raise Constitutional concerns. “HHS used a statute that authorizes exclusion of individuals convicted of ‘misdemeanor[s] relating to’ scienter-based crimes to exclude individuals convicted of strict liability misdemeanors requiring no mens rea,” Udell’s brief argues. “Compounding that error, HHS imposed an unprecedented period of exclusion that treated appellants more harshly for a single misdemeanor involving no conscious wrongdoing than [the government treated] individuals incarcerated for multiple felonies involving intentional misconduct.” The Udell brief goes on to say, “HHS insinuates that appellants must have known of the misconduct of others, describing their ‘lack of awareness’ as ‘purported,’ ‘professed,’ and ‘alleged,’ and ultimately not credible. . . These insinuations are entirely improper.” Both HHS and the district court, however, ruled that the execs had the responsibility and the authority to prevent the misbranding of Oxycontin, a powerful narcotic. Since his debarment, Udell has gone into private practice at the Udell Law Office LLC in Westport, Connecticut. He has not returned messages to CorpCounsel.com seeking comment. The Association of Corporate Counsel, the Washington Legal Foundation, and the Pharmaceutical Research and Manufacturers have all filed amicus curiae in support of the Udell side. Oral arguments are scheduled for December 6, before a three-judge panel, in the U.S. Circuit Court of Appeals for the District of Columbia. See also: “Due Process Questions Raised in Purdue Pharma GC’s Debarment,” CorpCounsel, July 2011.

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