» 2011 » May

Pharmaceutical Company at the Center of Employment and Whistleblower Lawsuit

Medical device company Conceptus, Inc. is under fire in the U.S. District Court for the Southern District of Texas in Houston for firing a worker for complaining about a fellow salesman who was allegedly improperly enticing pharmaceutical clients.

Toby James, the whistleblower, took over Chris Orlaska’s accounts, another salesman at Conceptus. Quickly he discovered that Orlaska was allegedly improperly selling or giving away the devicemaker’s Essure kits and that some physicians were potentially illegally billing Medicaid for the free kits. After speaking with various nurses, James cross-referenced sales reports and asserts he found little data to back up the kits that were in their possession. James indicates he reported the incident to his manager, and ultimately his manager’s boss when no action had been taken. After a meeting with the boss, he says he was encouraged to email the head of human resources regarding the issue.

In a twist of events over a two-week period, James was fired and then sent a harsh letter from a lawyer that Conceptus hired. James maintains that he was protected from retaliation by the False Claims Act, Section 3730, part h, which encourages employees with knowledge of fraud to come forward by prohibiting retaliation against those employees. Section 3730 also includes the entitlement to relief for: “job reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”

The case will be an interesting one to watch unfold as pharmaceutical companies are already in a pressure-cooker situation with numerous reported fraudulent and unethical incidents plaguing the industry. Combine that with wrongdoers who have been accused of making illegitimate Medicaid claims, and it’s a toxic situation.

The Pharmaceutical Research and Manufacturers of America (PhRMA) established a code that outlines best practices for the pharmaceutical industry. “Pharmaceutical company representatives play an important role in delivering accurate, up-to-date information to healthcare professionals about the approved indications, benefits and risks of pharmaceutical therapies,” PhRMA stated in its “Code on Interactions with Healthcare Professionals”. “Company representatives must act with the highest degree of professionalism and integrity.”

Even Conceptus’ Code of Ethics from September 2010 says that, “If you know of or suspect a violation of the Code, feel uncomfortable about a situation or have any doubts about whether it is consistent with the Company’s high ethical standards, seek help.” Conceptus employees must sign an agreement whereby they acknowledge, “I am not aware of any unreported violations of the Code, and agree to report any violations or concerns in the manner described in the Code.”

Is there a double standard? Perhaps. But either way, Mr. James was very wise to seek an attorney to protect his rights.

Oftentimes, the best asset an employee has is independent legal counsel that can bring knowledge of all sides of employment law. Austin employment attorney and Austin whistleblower attorney Gregory D. Jordan has a wide range of experience in employment law and represents both employees and employers in vigorously upholding their rights. With more than 20 years of experience in employment litigation, Jordan has counseled on such topics as wrongful termination, retaliation, discrimination, harassment, whistleblowers, overtime and wage claims, and the Family and Medical Leave Act. To learn more, please go to http://www.theaustintriallawyer.com or call (512) 419-0684.

Gregory D. Jordan is an Austin business attorney, Austin employment lawyer, and Austin business litigation lawyer. To learn more, visit Theaustintriallawyer.com.

Austin Business Litigation Attorney Gregory D. Jordan comments on Texas Shareholder Dispute over $7 Billion Takeunder Merger

Austin, Texas – Breach of fiduciary duties and shareholder disputes take center stage in the class action lawsuit between a Frontier Oil Corporation shareholder and Frontier’s Board of Directors as it tries to merge with the Holly Corporation.

Frontier Oil Corporation and the Holly Corporation have signed a $7 billion agreement to merge to become one of the biggest U.S. oil refiners. Frontier’s shareholder Walter Ryan, Jr. alleges they would become minority shareholders in the new company and the deal is really a takeunder because Holly is buying Frontier for less than its market price.

The complaint slams the merger, alleging that, “Frontier’s shareholders will be permanently and incurably harmed if the proposed transaction is allowed to be consummated.” The dispute includes allegations of preclusive deal protection devices with a no-shop clause that prohibits Frontier from seeking alternative merger offers, an excessive termination fee of $80 million that Holly Corp. will charge if another offer arises, and selling Frontier at a low, unfair price.

As Ryan and apparently some other Frontier shareholders view the dispute, the directors of Frontier have a fiduciary duty to “obtain the highest value reasonably available for the corporation’s shareholders” as well as not to receive financial benefit or “preferential treatment at the expense of public shareholders.”

This lawsuit in the District Court of Harris County, Texas points to the fact that sometimes directors, partners, and shareholders need legal representation to ensure all parties will act reasonably and as promised. “Whether it is a dispute over $7 billion or a few hundred thousand, businesses and partnerships do not always operate smoothly,” said Austin business attorney Gregory D. Jordan. “Counsel must understand business partnerships and shareholder obligations. In a dispute such as this, it is critical to have legal counsel that will effectively and efficiently pursue your best interests. It will be very interesting to see whether the court finds those obligations were breached in this case.”

The Law Offices of Gregory D. Jordan has handled numerous disputes involving partnerships and shareholders. As an Austin shareholder attorney and Austin partnership attorney, Jordan has more than 20 years of experience with businesses in oil and gas production and exploration, medicine and dentistry, restaurants, wholesale products distribution, real estate and property development, sales and retail establishments, airplane sales and leasing, intellectual property licensing, franchises, software development and hardware, and a wealth of other business ventures.

To learn more visit, http://www.theaustintriallawyer.com.

Texas Construction and Drainage Dispute Requires Legal Guidance

Business owners generally expect their neighbors to think about the consequences of their actions before they act. Unfortunately, it appears the neighbors of an apartment complex in Galveston may not have done so.

The owner of Courtyard Apartments is dealing with major water drainage issues and damage since the Dickinson Independent School District (DISD) built the Sam Vitanza stadium and a parking lot next door. The apartment owner, Multi-Family Baker LLC, tried to resolve the problems with pooled water and poor drainage with the school district, its general contractor and architect with no success. They also tried to get DISD to correct damage the construction had allegedly done to its apartment trash area.

“Each [of the Defendants] knew that its failure to construct adequate drainage structures was causing storm water to drain to, and collect and back up in the Courtyard Apartments’ north parking lot,” Multi-Family Baker said.

DISD, Durotech GP LLC, Durotech Inc. and PBK Architects Inc. are now being sued in the 122nd Judicial District Court in Galveston County for not building drainage structures that would have allowed storm water to move northward from the Courtyard Apartments’ north parking area into drainage ditches to the east and west. Damage to the Courtyard Apartments parking areas and asphalt has occurred.

Texas Constitution Article 1, Section 17, “prohibits taking, damaging, destruction, or application of a person’s private property for public use without adequate compensation.” Multi-Family Baker alleges that DISD invaded its property, unreasonably interfered with its operation, and is in violation of the Texas Water Code. The Texas Water Code Section 11.086 states that, “no person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.” And, “a person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.”

Claims of negligence, interference, and trespassing occur in this case, and in many construction lawsuits. When working to resolve these types of claims it is usually advisable to hire an experienced construction attorney. An experienced construction litigation attorney should be able to cut through much of the extraneous material and work to determine the cause of construction-related problems whether they result from design errors or the disregarding of laws, permits, and building standards. This may involve the use of technical experts skilled in specific construction fields. It may also involve the use of economic experts to determine how the construction problems affected the value of the business in the short term, what damages were inflicted, and what funds will be needed to correct the problems.

Austin construction litigation attorney and business litigation attorney Gregory D. Jordan has more than 20 years of experience representing diverse businesses with their construction concerns. He has counseled plaintiffs and defendants, real estate developers, property purchasers, property sellers, homebuilders, homebuyers, property owners, commercial contractors, commercial building owners, homeowners’ associations, condominium builders, condominium buyers, large corporations, small businesses, and individuals. To learn more, please go to http://www.theaustintriallawyer.com or call (512) 419-0684.

Gregory D. Jordan is an Austin business attorney, Austin employment lawyer, and Austin business litigation lawyer. To learn more, visit Theaustintriallawyer.com.

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