Category: News Feeds

Today, Kelly Loeffler will do as she’s always done since her appointment to the United States Senate a year ago, which is to say debase herself and slime her own legacy, such as it is, in an equally derisory and dangerous effort to subvert democracy. The down-home billionaire’s wife senator from the New York Stock Exchange, with deep roots in the farmland of, uh, Illinois, will participate in an all-but-doomed coup attempt to install Donald Trump in the White House for another four years in spite of what the voters and the Constitution say. As it happens, of course, she has good reason for disregarding voters, as the pathetic pantomime will be one of the last things she does on Capitol Hill, as it turns out she’s no better at winning elections than the guy she’s shilling for.

The Trumpland lawyers are wildin’ out today. And every day, of course, but today is something special. Check out Rudy Giuliani, who marched on stage to a rousing chorus of “Macho Man,” then exhorted his followers to keep Trump in power by “combat.”

“Let’s have trial by combat,” he roared in the middle of a rant about “crooked Dominion machines.” And perhaps he was just talking about an election challenge, although it’s an interesting turn of phrase when addressing a mob of armed rioters intent on storming congress to ensure their guy stays in power. (Indeed, as we were typing, those same protestors breached the security barrier at congress, forcing the evacuation of the Cannon Building.)

Here’s Guiliani’s pal John Eastman, Trump’s attorney on multiple election challenges and author of the infamous editorial claiming Kamala Harris was unqualified to run for president because birthright citizenship is fake news, flinging nonsensical accusations about Georgia poll workers fabricating votes.

“They were unloading the ballots from that secret folder, matching them — matching them to that unvoted voter, and voila we have enough votes to barely get over the finish line,” he claimed, before pivoting to his bizarre pet theory that the Vice President can unilaterally reject presidential electors and choose a president.

“All we are demanding of Mike Pence is this afternoon at one o’clock, he let the legislatures of the states look into this, so we get to the bottom of it, so the American people know whether we have control over the direction of our government, or not.”

Spoiler Alert: Nope.

Meanwhile, Louie Gohmert, a former judge in his home state of Texas, has appealed his losses at both the U.S. District Court for the Eastern District of Texas and the Fifth Circuit seeking to toss out the Biden electors. A mere three days later — hours before congress met to certify electors — he demands that Justice Alito swoop in and tell Mike Pence to reject certified electors in favor of a bunch of wacko cosplayers.

And speaking of wacko, look whose signature is on this appeal.

Krakens! As inevitable as the tide. Although there’s a storm brewing up north, where lawyers for the City of Detroit have asked for Rule 11 sanctions against Sidney Powell and Lin Wood, who “initiated the instant suit for improper purposes, including harassing the City and frivolously undermining ‘People’s faith in the democratic process and their trust in our government.’”

Here’s a choice passage:

There are so many objectively false allegations in the Complaint that it is not possible to address all of them in a single brief. This brief will address some of the more extreme examples.

For instance, Plaintiffs claim that their self-proclaimed experts include a military intelligence analyst, but when they accidentally disclosed his name, the “expert” was revealed to have washed out of the training course for military intelligence. Plaintiffs’ counsel did not redact the information to “protect” the “informant,” they did so to hide their fraud on the court.

Plaintiffs’ “expert” reports are rife with misstatements of Michigan law and election procedures. Those reports lack the simplest foundation of technical expertise, fail to use even elementary statistical methods and reach conclusions that lack any persuasive value. But, those unscientific conclusions, based upon false premises and faulty techniques are presented here as though they embody the uncontroverted truth.

The City requests the court to visit multiple unpleasant consequences on the plaintiffs and their attorneys, including “monetary sanctions against Plaintiffs and their counsel in an amount determined by this Court to be sufficient to deter future misconduct,” forcing the plaintiffs to post a bond and prove to a magistrate judge that their claims are not frivolous before filing suit in the Eastern District of Michigan, barring the attorneys from practicing law in the District, and “Referring all Plaintiffs’ counsel to the Michigan Attorney Grievance Commission []and also to the disciplinary authorities of their home jurisdictions.”

But Lin Wood is undeterred.

And then he joined the crowd of protestors, some of whom have currently stormed the Capitol and forced congress into lockdown.

Who does a lawyer have to threaten around here to get disbarred these days?

NO ONE KNOWS.

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

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The coup attempt initiated by outgoing President Trump has been despicable. Today, it became violent. If blood is shed, it will be on his hands. These actions, fueled by lies and wild conspiracy theories espoused by President Trump, must be unequivocally condemned by every corner of our society.

Ultimately, I am confident the rule of law will prevail. Joe Biden, our duly elected president, will assume office on January 20th and history will remember this as a sad but unsuccessful attempt to destroy our democratic republic.

— New York Attorney General Letitia James, commenting on the violent coup attempt that is underway at the U.S. Capitol.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

In case you’re too busy with work to pay attention to what’s going on in Washington, D.C., I hate to be the one to tell you, but there’s a violent coup attempt underway. And I’m not exaggerating. The political theater Senator Josh Hawley started by objecting to the certification of the electoral college results have reached its logical conclusion.

Armed MAGA protestors have stormed the Capitol Building. Vice President Pence has been escorted to a secure location, the building has been evacuated, and curfew is in place.

Here’s the reaction you need to know right now (this article will be updated throughout the day, please refresh often for the latest).

Note: This podcast was recorded before Mitchell resigned from Foley & Lardner, but that actually just adds to how wild this week was for the firm.

As the post-election drama gets even weirder, Biglaw partner Cleta Mitchell turned up on a call seeming to represent Donald Trump as he attempted to solicit election interference from Georgia officials. Joe and Kathryn revisit the difference between professional consequences and business consequences when it comes to lawyers and boggle over how a lawyer could let a call like this happen without confidentiality provisions. Also, Josh Hawley and Ted Cruz have elite law school educations and their classmates wish they’d act like it.

Special thanks to our sponsors, Paper Software, LexisNexis® InterAction®, and Lexicon.

Forty-six hospitals have filed a lawsuit against Alex M. Azar II, secretary of the Department of Health and Human Services, arguing for the reversal of a policy that is preventing the hospitals from getting reimbursed for over $1.3 million in bad debt payments.

Medicare beneficiaries are responsible for paying coinsurance and deductible amounts, and if they fail to do so, the costs may have to be borne by people not covered by the Medicare program. To ensure this does not happen, the costs attributable to the amounts that remain unpaid are reimbursed by Medicare as “bad debts.”

In 2006, HHS issued a policy that reversed a long-term practice of providing reimbursement for hospitals’ bad debt, claimed on cost reports, while the accounts were still pending at an outside collection agency. Consequently, the hospitals’ Medicare appeals contractors — HHS agents who provide reimbursement to Medicare providers — denied all reimbursements for Medicare-related bad debts sent to outside collection agencies for fiscal years 2006 through 2009, amounting to approximately $1.35 million.

The hospitals that filed the suit in the U.S. District Court for the District of Columbia are seeking a reversal of the policy. They claim reversal is warranted, in part, because the hospitals’ “bad debts are explicitly allowable under applicable law.”

“The final decision upholding the disallowance of the Medicare bad debts at issue on the ground that they were still pending at an outside collection agency at the time they were written off is arbitrary and capricious, an abuse of discretion, or unsupported by substantial evidence in the record,” the lawsuit states.

Further, the hospitals are not only seeking reimbursement for the bad debts in full, but also interest and other relief.

Twenty five of the 46 hospitals that are plaintiffs in the current lawsuit were previously involved in a case that examined the same issue — District Hospital Partners v. Sebelius in 2013. At the time, the same court granted the hospitals’ motion for summary judgment, and the HHS secretary did not appeal the court’s decision and paid the hospitals with interest.

The need to cut costs and save money where possible has escalated over the past year as the Covid-19 pandemic threw hospital finances into a tailspin. Providers are still struggling to fend off the deadly virus that is spreading quickly across the country while their operating margins grow slimmer.

A recent report from healthcare consultancy Kaufman Hall shows that hospital operating margins fell by 56.4% (5.1 percentage points) during the period of January to November 2020 compared with the same period in 2019, when not incorporating funding received from the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act.

With the CARES funding, operating margins declined by 16.7% (1.9 percentage points) through November 2020 versus the year prior.

Photo credit: Hailshadow, Getty Images

Joe Biden waited until it was clear that Democrats would control the United States Senate to name his Attorney General nominee. Many speculated that Biden was intentionally holding up this pick to gauge the universe of the possible. Without the Senate, he’d be forced to nominate a, for lack of a better description, “milquetoast compromise white prosecutor” as Elie Mystal put it. On the other hand, girded by a Senate unable to stymie a confirmation, Biden might pick someone who conveyed to the base that just delivered the Senate that the Justice Department would be making civil rights a priority going forward.

Well, the Democrats won the Senate and Biden has selected… the compromise white prosecutor. Wait, what?

Yes, Garland would not be the compromise pick had Democrats lost the Senate. Opening a seat on the D.C. Circuit to be held open for four years would have been nonsensical, but with Senate control, that seat is available for, one presumes, Judge Ketanji Jackson, which would be a boon to that court going forward. And, the Garland news comes the news of additional expected appointments:

Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general.

Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law is expected to take over the Civil Rights division. Foregrounding the civil rights chain of command right off the bat does convey a symbolic commitment, but it also seems a bit hollow when the top line doesn’t match up.

As our old colleague put it:

One of the core flaws in the Democratic Party right now is its commitment to “competence” as an end in itself. Republicans are willing to embrace chaos to achieve their policy preferences. They literally spent four years nominating judges rated “Not Qualified” to get what they want. And while competence is better than incompetence, the value proposition of the Democratic Party is often presented as it seems as “vote for us, we can chew gum and walk at the same time,” which is an admirable quality but falls short of what people need out of a government.

And, right now, what a lot of the country needs to see out of government is a sign that the administration is going to make civil rights a driving force behind the Justice Department, and this doesn’t do it.

But, Garland got completely and unfairly screwed out of a Supreme Court seat, so this is a nice gesture to reward him for going through that hell. It’s just that the office of the Attorney General is probably more important than a consolation prize.

Biden to name judge Merrick Garland as attorney general [Atlanta Journal-Constitution]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Last week, the New York Post reported on a Tik Tok influencer who was experiencing a phenomenon that’s called superfetation. It’s an exceptionally rare condition, where a pregnant woman becomes pregnant again at the same time as another pregnancy. In the Tik Toker’s case, she was actually already pregnant with twins, when she conceived a third child! She reports that the situation occurred entirely naturally, and that she was not taking fertility medication.

Of course, thanks to a bizarre surrogacy case from several years ago, loyal readers of this column were already familiar with the unusual condition of superfetation. The New York Post article even referenced that surrogacy case –- that of Jessica Allen, a California woman who unknowingly became pregnant with her own child, while already pregnant as a gestational surrogate for a Chinese couple. Those twins were born in December 2016, and a lawsuit was filed in 2018 by Allen against the surrogacy agency.

Whatever happened to that case? A lot, it turns out. Including a recent filing of cross claims, in December 2020, by the surrogacy agency against Allen!

Refresher On The Case. This case blew a lot of minds, as most people didn’t know that it was scientifically possible for a woman to become double pregnant. In the unusual fact pattern, Jessica Allen agreed to be a gestational surrogate, and was matched with a couple through Omega Family Global, Inc., an ominously named surrogacy agency out of San Diego. The hopeful intended parents were from China, but that’s not uncommon. Per typical gestational surrogacy terms, Allen entered into a contract with the intended parents that they would compensate her for time and efforts as a gestational surrogate, including additional compensation of $1,000 per month starting the 20th week of pregnancy, if she were carrying twins.

Only one of the Chinese intended parents’ embryos was transferred to Allen’s uterus as part of the gestational surrogacy process. So it was a bit of a surprise when ultrasounds later showed that Allen was carrying two fetuses. But not that much of a surprise, really. In a small percentage of pregnancies, an embryo splits to become twins. And that is what everyone assumed had happened.

Per the contract, the intended parents paid Allen additional expenses and compensation related to the twin pregnancy. However, after the birth, it became clear that the babies were not, in fact, identical twins from a split embryo. Instead, after some confusion and genetic testing, it was revealed that one baby was the genetic child of the Chinese intended parents, while the other was the genetic child of Allen and her partner. Allen and her baby were reunited in February 2017, which was almost two months after the birth.

Allen filed suit against the surrogacy agency in July 2018, with a scathing account of her treatment after the birth. We are just now hearing the other side of the story through the recently filed cross complaint.

The Other Side. The basic facts of the case are undisputed. Allen agreed to be a surrogate, and she became pregnant with her own child at the same time as the surrogacy pregnancy. However, one of the biggest points that the surrogacy agency makes repeatedly is that Allen agreed in her contract with the intended parents, “not [to] have sexual intercourse from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed by the IVF Physician.” In other words, this situation is entirely Allen’s fault. She contracted away her right to have sex during a key period during the surrogacy process. By breaking her agreement, she caused an emotionally traumatic and expensive situation for all involved.

The Intended Parents’ Devastation. The cross complaint describes how when the twin discovery was made during the ultrasound, “the Intended Parents were elated about the opportunity of having twins, so they started making arrangements to accommodate each baby. They also shared the news with their friends and family.” It goes on to describe the devastation of the intended parents when they found out one of their babies was not, in fact, theirs.

And, of course, there was the issue of the money. The cross complaint explains how the surrogacy agency entered a settlement with the intended parents where it paid them $8,000, reimbursing them for the extra payments they made to Allen for the twin pregnancy. In exchange, the intended parents transferred and assigned all of their rights under the contract with Allen including any and all causes of action against Allen.

When Did Everyone Know There Was An Issue? In the original complaint filed by Allen, she described sounding the alarm as to the twins not looking alike when the intended mother showed her a picture of the twins shortly after the birth. Allen described her observations being brushed off by the surrogacy agency. By contrast, the surrogacy agency’s filing disputes Allen’s description of her own responsible conduct, instead claiming that “Ms. Allen alleged that the twins both seemed of Asian descent.” And that later, when Allen was informed that DNA testing showed that one of the babies was not a child of the Chinese intended parents, Allen’s “first concern was whether there would be any ramifications for [her] as the surrogate.” The cross complaint goes on to allege that Allen initially denied having sex during the contractually prohibited time period, and argued that the baby was not hers. “In support of [her] argument, Ms. Allen alleged that the babies had similar eye bags and noses.”

The baby at issue is now four years old. I have to admit that I’m surprised that a case like this didn’t settle years ago. It was a rough situation for everyone, and hopefully one that all parties can move on from in a healthy way. In the meantime, the case serves as a warning for all participants in a gestational surrogacy arrangement of the importance of those contractual sexual activity restrictions — and that those 5th-grade health education classes may have left out some surprising facts about human reproduction.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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