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Lowenstein Sandler LLP

Scott B. McBride

Scott B. McBride

Partner

Expertise

  • Litigation
  • White Collar Criminal Defense

WSG Practice Industries

Activity

Lowenstein Sandler LLP
New Jersey, U.S.A.

Profile

Scott has what white collar defendants need most: a deep understanding of how the system works. An Assistant U.S. Attorney for over a decade, he combines that knowledge with formidable courtroom skill to provide clients with a defense that is equal parts judicious and tenacious.

Scott focuses his practice on matters of government, securities, financial, and health care fraud; Foreign Corrupt Practices Act violations; and civil business litigation, leveraging the experience gained from more than 10 years in the U.S. Attorney's Office in Newark, New Jersey. He investigated and prosecuted a broad range of white collar criminal offenses there, serving as Deputy Chief of the Economic Crimes Unit and as a member of the Health Care & Government Fraud Unit. He also prosecuted numerous cases involving cybercrime, identity theft, and intellectual property-related offenses, as well as tax evasion and public corruption.

Scott also has significant civil litigation experience in both the private and public sectors.

Prior to joining the U.S. Attorney's Office, Scott completed federal clerkships under the Honorable Jose L. Linares and the Honorable Ronald J. Hedges, both of the United States District Court for the District of New Jersey.

Bar Admissions

    New York
    New Jersey
    District of Columbia

Education

Georgetown University Law Center (J.D. 2002)
Georgetown University, School of Business (B.S. 1997), Finance and Government
Areas of Practice

Litigation | White Collar Criminal Defense

Professional Career

Significant Accomplishments

Represented manufacturing company in investigation by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Bergen County Prosecutor’s Office in relation to nine-alarm fire at New Jersey factory.

Represented a multinational pharmaceutical and life sciences company in an internal investigation concerning internal marketing and promotions policies. 

Represented a multinational medical device company in connection with False Claims Act allegations concerning Medicare billing. Negotiated a favorable settlement with the Department of Justice and the Office of the Inspector General without any admission of liability.

Represented a large national charitable organization in connection with a potential dispute with the State of New Jersey over millions of dollars in Medicaid funding. Obtained a complete Medicaid waiver with no adverse consequences for the organization.

Represented a marketing executive at a medical device company in connection with a Department of Justice investigation into allegations of widespread and unlawful kickbacks and off-label marketing. Successfully negotiated and obtained a rare non-prosecution agreement from the Department of Justice.

Defended otolaryngologist medical practice against investigative findings by Horizon NJ Health of improper and inaccurate billing, negotiating a settlement with 40-percent reduction in HNJH’s overpayment demand and no referral to state Medicaid Fraud Control Unit (MFCU).

Represented a health care professional accused of inappropriate conduct with an employee. Conducted an internal investigation and interfaced with investigators and prosecutors. The enforcement agency ultimately terminated the investigation without charges within a matter of weeks.

Represented pharmaceutical company marketing director in civil dispute in Superior Court of New Jersey, Hunterdon County. Client was sued by her former accountant and attorney in relation to a fees dispute. Successfully moved to dismiss complaint, obtaining a dismissal with prejudice. 

Obtained dismissal in Criminal Court of the City of New York, New York County, of Class A Misdemeanor assault charges.

Provided pro bono representation of a former child soldier from Sierra Leone whose naturalization application was denied. Obtained a reversal of the U.S. Citizenship and Immigration Services denial and citizenship for the client.

Provided pro bono representation of a Nigerian Christian asylum applicant denied admission to the United States. Successfully won an asylum appeal before the Board of Immigration Appeals.

Speaking Engagements

Lowenstein Sandler is hosting a breakfast seminar entitled "The False Claims Act – Recent Developments, Best Practices, and Pursuing Insurance To Manage the Risk." Scott McBride, Andrew Reidy, and Joe Saka will address precautionary steps companies can take to comply with the FCA, tips for strategically responding to a government investigation, and how businesses may be able to utilize insurance coverage to manage the risk of FCA claims. The seminar will also highlight the intricacies of the FCA and emerging trends, including the surge in well-funded whistleblowers with sophisticated counsel, the targeting of individual officers and directors, and the increased exposure of financial intuitions and financial services companies.

Scott McBride will participate in a webinar entitled "How to Effectively Deal with SEC Investigations and Enforcement Actions in 2017" presented by The Knowledge Group. Scott and lawyers from Allen & Overy, Pepper Hamilton, and Jenner & Block will discuss SEC enforcement trends, recent SEC enforcement actions, new SEC guidance on cooperation in investigations and enforcement actions, significant issues for financial statement disclosures and best practices in developing an effective compliance program, among other topics.

Scott McBride will speak on the panel discussion "Being the Focus of a Government Investigation" and present "Health Care Fraud Sentencing, Penalties, Damages & Other Considerations" at the Seton Hall Law Health Care Compliance Program.  The firm will also sponsor a networking lunch in conjunction with the program.

Scott McBride will speak on a panel at the Health Care Compliance Association's Healthcare Enforcement Compliance Conference. The conference will address the latest trends in regulatory changes, legal analysis's of various regulations and how to ensure your company is in compliance, and best practices for implementing an effective compliance program.

Scott McBride will speak on the panel “Being the Focus of a Government Investigation” and present “Health Care Fraud Sentencing, Penalties, Damages & Other Considerations” at Seton Hall Law’s Health Care Compliance Program. The firm will also sponsor a networking lunch in conjunction with the program.

Scott B. McBride participates on two panels as part of Seton Hall University School of Law's U.S. Healthcare Compliance Certification Program (June 11-14, 2018).

Panel discussions

11 a.m.-12:15 p.m.: Being the Focus of a Government Investigation

  • Lynne Anne Anderson, Drinker Biddle & Reath LLP
  • Mike Doyle, Federal Bureau of Investigation
  • Jacob Elberg, U.S. Attorney's Office, District of New Jersey
  • Scott McBride, Lowenstein Sandler LLP
  • Jim Sheehan, New York Attorney General’s Office

Moderator: Professor Timothy Glynn, Seton Hall Law School

1:15-2:20 p.m.: Health Care Fraud Sentencing, Penalties, Damages & Other Considerations

  • Scott McBride, Lowenstein Sandler LLP
  • Jenny Kramer, Alston & Bird
  • Joseph Mack, Bayer U.S.

 

Scott B. McBride will speak on the panel “Being the Focus of a Government Investigation” and present “Health Care Fraud Sentencing, Penalties, Damages & Other Considerations” at Seton Hall Law’s Health Care Compliance Program. The firm will also sponsor a networking lunch in conjunction with the program.

Location: Seton Hall Law School, Newark, NJ

Scott B. McBride joins Seton Hall Law School faculty and respected industry leaders at the U.S. Healthcare Compliance Certification Program for the Panel Discussion: Being the Focus of a Government Investigation and the Health Care Fraud Sentencing, Penalties, Damages & Other Considerations program. 

This four-day healthcare compliance certificate program immerses attendees in the statutes, regulations, and other guidance that comprise the body of law known as “fraud and abuse law.”

Attendees examine healthcare-related laws and regulations alongside other compliance, ethics and integrity officers, legal counsel, health care consultants, and regulatory and medical affairs professionals.

Throughout the program, participants engage in group problem-solving activities and analyze the covered laws and regulations through case studies.

By the program conclusion, attendees discover how to create a culture of compliance and leave with the skills necessary to develop, enhance, and enforce their organizations' corporate compliance programs.

Lowenstein Sandler is hosting a networking lunch at this event on October 17, 2019, from 12:05-1:05 p.m.

Panel Discussion: Being the Focus of a Government Investigation

  • Scott B. McBride, Lowenstein Sandler, LLP
  • Mike Doyle, Federal Bureau of Investigation
  • Rachael Honig, U.S. Attorney’s Office, District of New Jersey
  • Jenny Kramer, Alston & Bird
  • Jim Sheehan, New York Attorney General’s Office
  • Moderator: Jacob Elberg, Seton Hall Law School

Time: 1:05-2:20 p.m.

Health Care Fraud Sentencing, Penalties, Damages & Other Considerations

  • Scott B. McBride, Lowenstein Sandler, LLP
  • Jenny Kramer, Alston & Bird
  • Joseph Mack, Bayer U.S.

Time: 2:40-3:45 p.m.



Professional Associations

Summit Speech School, New Providence, NJ
  • Trustee, Board of Trustees
McBride Enterprises, Inc., Franklin Lakes, NJ
  • Member, Board of Directors

Professional Activities and Experience

Accolades
  • NJBIZ Health Care Power 50 (McBride)
  • Chambers USA (2018-2020) - Scott McBride

Articles

Salman v. United States And Its Impact On Insider-Trading Enforcement
Lowenstein Sandler LLP, May 2017

On December 6, 2016, the U.S. Supreme Court ended two years of uncertainty surrounding what actually constituted illegal “insider-trading” for the “tippers” who pass on confidential information to others, and for the “tippees” who receive the information and trade on it. In Salman v. United States, 1 the Court restored the status quo ante (or most of it, anyway) that had been disrupted by the Second Circuit’s landmark holding in United States v...

SEC Amends Form ADV And Recordkeeping Rules
Lowenstein Sandler LLP, December 2016

On August 25, the Securities and Exchange Commission (the “SEC”) adopted a final rule making amendments to Form ADV providing for (i) the disclosure of additional information regarding advisers, including information about their separately managed accounts, (ii) a method for private fund adviser entities operating a single advisory business to register using a single Form ADV, and (iii) certain clarifying, technical, and other amendments to certain Form ADV items and instructions...

Additional Articles

The federal health care Anti-Kickback Statute (Federal AKS) targets bribery and corruption in the health care industry. There are two core provisions of the Federal AKS: one targeting the bribe recipient and one targeting the bribe payer. Specifically, the statute prohibits receiving “any remuneration . . . in return for” health care referrals or purchases reimbursable under a federal health insurance program, such as Medicare.[1] And it prohibits paying any remuneration “to induce” health care referrals or purchases reimbursable under such a federal program.[2]


The Federal AKS is an incredibly far-reaching law giving federal enforcement agencies an arsenal of weapons to target questionable business arrangements in the health care industry. The term “remuneration” is defined open-endedly to mean “anything of value.”[3] And “anything of value” means just that: There is no de minimis remuneration under the Federal AKS.[4] To prove a violation of the statute, the government need only demonstrate that one of the many possible purposes of paying remuneration was the inducement of the purchase of the federally reimbursable goods or services.[5] Additionally, courts generally will not engage in a “splitting of hairs” when it comes to discerning the meaning of words such as “refer” and “recommend,” relying instead on the broad, prophylactic purposes of the statute.[6] Also, the plain language of the Federal AKS suggests that a quid pro quo is unnecessary for a payer of remuneration (i.e., a bribe payer) to violate the statute, raising the possibility that a health care company, provider, or individual could violate the statute simply by paying money to induce product usage, even if the recipient has not agreed to use the product in return for the money (i.e., even if the recipient of the “bribe” does not know he or she is being bribed).[7]


Given the expansive reach of the Federal AKS, there are a number of statutory and regulatory exceptions and “safe harbors” to the law. For example, the statute’s restrictions do not apply to “a discount or other reduction in price” if a number of requirements are met.[8] Likewise, “bona fide employment relationship[s]” are insulated from the statute’s prohibitions,[9] as are “personal services and management contracts,”[10] as well as formal “referral services.”[11] But even these safe harbors typically have numerous and cumbersome requirements, and if each such requirement is not strictly met, the conduct is subject to criminal prosecution or other enforcement measures.


Compliance with the Federal AKS is something of an industry unto itself, but the federal statute represents only part of the risk for health care companies, providers, and individuals. All but one of the 50 states, as well as the District of Columbia, have analogous commercial bribery laws on the books that target corruption in the health care industry.[12] And of these 51 jurisdictions, 35 proscribe kickbacks and the like in the health care industry even if the goods or services are reimbursable only by private health insurance and involve no public money at all. These additional state laws and regulations thus often reach far beyond their federal counterpart.  Accordingly, any complete and fulsome analysis of an individual’s or entity’s anti-kickback exposure necessarily requires separate consideration of these state law analogues. 


Access the State Health Care Anti-Kickback Analogues survey.




 


[1] 42 U.S.C. § 1320a-7b(b)(1).
[2] 42 U.S.C. § 1320a-7b(b)(2).
[3] E.g.United States v. Narco Freedom, Inc., 95 F. Supp. 3d 747, 756 (S.D.N.Y. 2015) (citing Klaczak v. Consol. Med. Transp., 458 F. Supp. 2d 622, 678 (N.D. Ill. 2006)).
[4] See Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary Inducements, 81 Fed. Reg. 88368, 88379 (Dec. 7, 2016) (“[T]he anti-kickback statute does not have any exceptions for items or services of nominal value.”); Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed. Reg. 35952, 35954 (July 29, 1991) (rejecting commentators’ call for de minimis safe harbor).
[5] See, e.g.United States v. Nagelvoort, 856 F.3d 1117, 1130 (7th Cir. 2017); United States v. Borrasi, 639 F.3d 774, 781-82 (7th Cir. 2011); United States v. Kats, 871 F.2d 105, 108 n.1 (9th Cir. 1989); United States v. Greber, 760 F.2d 68, 71-72 (3d Cir. 1985); Polk County v. Peters, 800 F. Supp. 1451, 1455-56 (E.D. Tex. 1992) (holding that an agreement by a hospital to give a doctor an interest-free loan in exchange for the doctor’s exclusive use of the hospital for his patients was illegal and thus unenforceable, notwithstanding that “the hospital may well have been motivated to a greater or lesser degree by a legitimate desire to make better medical services available to the community”).
[6] United States v. Polin, 194 F.3d 863, 866 (7th Cir. 1999) (upholding conviction of defendants operating a pacemaker monitoring company who offered to pay a pacemaker sales representative to direct patients to the company, even though the sales representative was not the ultimate decision-maker on which company was selected to monitor the pacemaker); see also United States v. Patel, 778 F.3d 607, 612-16 (7th Cir. 2015) (rejecting a doctor-defendant’s argument that a “referral” cannot by definition occur when a patient “independently chooses a provider” without any “input from the physician,” reasoning that the purpose of the statute extends the meaning of “referral” to the doctor-defendant’s certifications and recertifications of medical necessity for services provided by a home health care service that was paying him kickbacks); cf. OIG Advisory Op. No. 99-8, July 13, 1999 (referring loosely to new patients of podiatrists obtained as a result of free screenings at shoe stores as “referrals”).
[7] See Hanlester Network v. Shalala, 51 F.3d 1390, 1397 (9th Cir. 1995); Vana v. Vista Hosp. Sys., Inc., No. 233623, 1993 WL 597402, at *7 (Cal. Super. Ct. Riverside Cty. Nov. 15, 1993) (finding that an agreement can be unlawful even if only one party has the improper intent).
[8] 42 U.S.C. § 1320a-7b(b)(3)(A); 42 C.F.R. § 1001.952(h).
[9] 42 U.S.C. § 1320a-7b(b)(3)(B); 42 C.F.R. § 1001.952(i).
[10] 42 C.F.R. § 1001.952(d).
[11] 42 C.F.R. § 1001.952(f).
[12] Some of these are arguably even more onerous than the federal law. E.g., N.J. Admin. Code § 13:45J-1.3(c) (prohibiting a physician from accepting from a pharmaceutical company “any item of value that does not advance disease or treatment education,” including “pens, note pads, clipboards, mugs, or other items with a company or product logo, [as well as] floral arrangements”).


Blogs

Big Thoughts/Quick Reads Antitrust Blog
Lowenstein Sandler LLP 

Triggered by current issues or by long-settled issues that we think need to be unsettled and reconsidered

Capital Markets Litigation
Lowenstein Sandler LLP 

Litigation News for the Global Financial Community

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