April 22, 2016 20:51 ET

WellCare Legal Case -- Federal Bar Association Webinar Features Experts on Overcriminalization

WASHINGTON, DC--(Marketwired - April 22, 2016) - A panel of highly-experienced lawyers were featured in a widely distributed webinar by the Federal Bar Association that examines the problems of overcriminalization and its effects on American business and society. The two-hour educational webinar titled "The Scourge of Federal Overcriminalization: Case Studies, Root Causes & Possible Solutions" featured the expert views of Washington, D.C. lawyers Matt Kaiser, Paul Kamenar, and Jeffery Lamken, as well as John Lauro of Tampa, Florida -- all authorities in criminal law and government investigations.

"The Scourge of Federal Overcriminalization" webinar, complete with an informative powerpoint presentation, addresses the growing bipartisan issue among policy makers and citizens alike and includes case studies of abusive prosecutions, political pressure on Congress to enact more criminal laws, and pragmatic solutions for the ever-growing topic that affects businesses on a national level. Criticizing the overreach of federal criminal law to criminalize ordinary regulatory disputes with federal and state agencies, the panel of four litigators presented a compelling case of using more traditional and reasonable non-criminal remedies by civil courts or administrative agencies. One case in particular, United States v. Clay, highlighted this problem where executives at WellCare, a Florida health care provider, were unfairly prosecuted for reasonably following a Florida Medicaid reimbursement law and contract.

John Lauro of Tampa, FL, addressed the so-called 80/20 Statute in his argument stating, "Because Florida regulators decided not to engage in formal rule-making with WellCare, [Florida Medicaid] never specified how the [80/20 reimbursement statute] calculation should be estimated," John Lauro explained. According to the 80/20 Statute, the WellCare Health Maintenance Organizations were required to return Medicaid dollars to the state for health care in the event that it did not exceed 80% of the total premiums. "Instead, the regulators decided to personally negotiate the contract provisions with WellCare for over a decade, on how to perform the calculation," Lauro said. This lead to regulatory ambiguity and an opportunity for federal prosecutors to second-guess the agreement already established.

The panel continued its discussion about ambiguous laws which allow prosecutors to stretch the limits of the law by targeting individuals lacking moral blameworthiness for their conduct. Focusing on the post-trial appeals by the defense, the four lawyers also outlined the necessary arguments that must be made to reverse the convictions. They explained the concept of actus reus and mens rea, whereby prosecutors must prove beyond a reasonable doubt both the presence of a crime, actus reus, and the criminal intent of the defendant, mens rea. Regarding United States v. Clay in particular, the panel underscored how WellCare's CEO lacked both the criminal intent and even the existence of a crime, and thus, was a prime victim of overcriminalization. Supported by the precedent of Whiteside v. United States, the actus reus argument was explained further by John Lauro: "Whiteside provides and holds, that if a person is reasonably responsive to a regulatory framework, then that person cannot be prosecuted criminally, because there's an absence of actus reus." Jeffery Lamken also noted that as a general matter, in the area of fraud statutes, the laws and regulations are written in "very broad and malleable language" where it is difficult to know what conduct is impermissible and where jurors are more likely to convict without sufficient proof of mens rea.

Taking place at the Federal Bar Association's offices in July 2015, the two-hour webinar included other case studies of overcriminalization in addition to United States v. Clay, currently pending before the Eleventh Circuit court of appeals. The case has gained national recognition from prominent policy organizations to bring more attention to the problem of overcriminalization and overfederalization of state regulatory matters. The Federal Bar Association, headquartered in the Washington, D.C. area, is a premier professional organization consisting of more than 17,000 federal lawyers, including 1,200 federal judges, who work together to promote the sound administration of justice and integrity, quality, and independence of the judiciary.

The Scourge of Federal Overcriminalization: Case Studies, Root Causes & Possible Solutions Webinar:

For more information about the WellCare Criminal Prosecution Case, visit:

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