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For its June 2022 issue, Inc. Magazine selected AEL partner Ken Abell as among its 10 Most Inspiring Lawyers to Watch and interviewed Ken about AEL’s meteoric rise in the New York boutique law firm market. The article noted that AEL is one of the only small law firms offering representation in high-stakes government investigations and False Claims Act (FCA) matters, a market typically left to “BigLaw.” Already recognized by ChambersUSA for its highly personalized, responsive and cost-efficient business model, Inc Magazine also noted AEL’s distinctive brand:

The team at AEL becomes personally invested in every one of their cases and is dedicated to achieving the best possible results for their clients. On a daily basis, the AEL team can be found in the trenches with their clients, fighting for their interests and well-being.

You can read the entire article and interview here.

In May 2022, AEL won another dismissal of criminal charges filed against one of its clients, this time of state criminal charges filed by the State of New Jersey (Hudson County). The criminal complaint, filed in January 2022, levied felony charges against the client for allegedly misappropriating approximately $150,000 in SBA loan funds provided in response to the COVID-19 pandemic, including funds from the federal Paycheck Protection Program (PPP) and the SBA’s Economic Injury Disaster Loan (EIDL) program. AEL confronted the charges directly, providing evidence, records and information to the Hudson County Prosecutor’s Office that the client had properly applied, was eligible for, and used the funds in compliance with SBA’s rules and regulations. On May 16, 2022, the State dismissed all charges filed against the client. Both the client and his AEL family are thrilled with the result. This case was handled by AEL partner David M. Eskew.

Since the inception of federal loan programs to aid businesses and employers in the wake of the COVID-pandemic, the Government has warned would-be fraudsters that robust enforcement action was forthcoming. Indeed, a recent NY Times article indicated that the Government had at least “500 people working on pandemic-fraud cases,” not including investigators from the FBI, U.S. Secret Service, the U.S. Postal Inspection Service, and the IRS. The article also indicated that the federal government had already charged some 1,500 individuals with pandemic-aid fraud and that there were tens of thousands of ongoing and open investigations. President Biden recently signed a bill extending the statute of limitations for pandemic-aid fraud to ten years to permit the Government additional time to investigate and prosecute pandemic loan fraud. Needless to say, the wave of government enforcement action related to COVID-19 pandemic loan fraud has only just begun to rise and has not nearly crested.

AEL has and is representing clients in both federal and state investigations relating to both alleged pandemic loan fraud and other alleged fraud relating to federal programs. This incredible result, and others that we have obtained in both charged and uncharged cases, highlights AEL’s expertise in government programs generally, including the Medicare, Medicaid, and Tricare programs, the PPP, SBA loan programs, and fraud in connection with Service-Disabled Veteran-Owned Businesses (SDVOB). In obtaining the dismissal above, AEL employed its signature evidence-based approach to confront the charges head on and bring about the best possible resolution as efficiently as possible.

AEL is proud to announce that, on August 18, 2022, two of our attorneys were named to the 2023 lists of Best Lawyers in America.

Scott R. Landau was once again awarded with the honor of being ranked as a “Best Lawyer” in the category of Health Care Law. With a specialty in healthcare regulation, Scott advises healthcare clients on complex compliance issues, negotiates and structures sophisticated transactions, defends institutions and individuals in government enforcement matters, represents providers in insurance inquiries and audits, conducts sensitive internal investigations, and litigates complex commercial and civil disputes. Scott has vast experience in healthcare law, having previously served as Associate General Counsel for the Mount Sinai Health System focusing on healthcare regulatory matters, and before that, as an Assistant U.S. Attorney for the Eastern District of New York, where he specialized in healthcare fraud and enforcement matters.  Since January 2020, when he co-founded AEL with Kenneth Abell and David Eskew, Scott’s practice has focused almost exclusively on helping healthcare providers and healthcare adjacent concerns with their most pressing issues.   

Julia H. Sear, Associate, was listed as a “Best Lawyer: Ones to Watch” in Commercial Litigation. Through her work at AEL, Julia provides stellar counsel to clients for a variety of matters, including in-depth investigations, commercial disputes, intellectual property, antitrust and real estate matters. Prior to her joining AEL, Julia served as an Assistant District Attorney at the Manhattan DA’s Office, where she tried several cases, and at a large nationally-recognized firm.

About Best Lawyers

The Best Lawyers in America list, having been published for more than three decades, is one of the most reputable and recognized rankings of attorneys across the nation. Those honored on the list are divided by geographic region and practice area(s) and their work undergoes a significant peer review process.

Best Lawyers: Ones to Watch in America recognizes associates and other attorneys who are at earlier stages of their careers for their impressive performance and professional excellence in private practice. Although slightly newer than the traditional The Best Lawyers in America list, Ones to Watch utilizes the same robust peer-review process and methodology.

To learn more about the review process utilized by Best Lawyers, please click here.

Abell Eskew Landau LLP (AEL) is pleased to announce that the Firm and all three of its partners were recognized in the 2022 Chambers USA Guide in multiple categories.

In the 2022 Guide, Chambers noted AEL’s “meteoric rise. They are one of the top-tier groups for healthcare white-collar matters and have put together a very talented group of lawyers.” Chambers ranked AEL alongside some of the nation’s largest and most prestigious firms in the categories of Healthcare (NY); Litigation: White-Collar Crime & Government Investigations (NJ); and Litigation: Specialist Firms in White-Collar Crime & Government Investigations (NY).

Chambers quoted AEL’s clients regarding both the Firm generally and its individual partners. One client described Scott Landau as “a terrific lawyer; very knowledgeable, practical and easy to work with.” Clients described David Eskew as “practical and smart” with “great judgment.” “He has a deep knowledge of government investigations relating to healthcare and the False Claims Act.”

Another client commented about AEL’s representation, “I was impressed by the thoughtfulness of approach and efficiency in delivering first-rate results at an affordable price.” AEL is particularly gratified with our clients’ recognition not only of our subject matter expertise in the areas of healthcare and white-collar crime and investigations, but also our “small-firm” approach to practicality, collaboration, and efficiency.

The complete rankings by Chambers USA are listed below:

Abell Eskew Landau

• Healthcare (NY) – Band 5
• Litigation: White-Collar Crime & Government Investigations (NJ) – Band 3
• Litigation: Specialist Firms in White-Collar Crime & Investigations (NY) – Band 3

Kenneth M. Abell

• Healthcare (NY)

David M. Eskew

• Healthcare (NY)
• Litigation: White-Collar Crime & Government Investigations (NY)
• Litigation: White-Collar Crime & Government Investigations (NJ)

Scott R. Landau

• Healthcare (NY)

Chambers & Partners is an independent research company delivering detailed rankings and insight into the world’s leading lawyers. Chambers describes its independent rankings as “central to everything we do and are why our research is the industry leader. It is our rigorous independent processes that makes Chambers the gold standard in legal insight.”

To view AEL’s Chambers rankings and profile, click here.

On March 10, 2022, Law360 published an article authored by partner Scott R. Landau in their Expert Analysis Section. The article discusses the recent decision in U.S. v. Medtronic PLC in the Central District of California that casts a shadow over the conventional wisdom that the safe harbors to the Anti-Kickback Statute (AKS) protect certain payment practices from liability regardless of the intent of the parties. As discussed in the article, the view expressed could be used to narrow the protections of the safe harbors and undermine the certainty they were meant to provide. The full article can be found on our Law Blog or on Law360.  

On January 11, 2022, AEL partner Ken Abell and associate Scott Glicksman secured a Second Circuit appellate victory for its client, the former CFO of a publicly-traded company, against a class action securities fraud suit against the company and its former officers and directors. At oral argument, the AEL team had argued that an unrelated guilty plea for insider trading (in which AEL also represented the client) did not provide a basis for plaintiffs to assert a viable securities fraud claim in this matter and the dismissal of the case by the district judge should be upheld. The three-judge panel issued a summary order affirming the district court’s dismissal of the action, holding, in part, that our client’s alleged insider trading did not cure the complaint’s pleading deficiencies, and any amendment of the complaint to that effect would be futile. You can read more about the appellate argument here.

On December 9, 2021, AEL partner Ken Abell and associate Scott Glicksman appeared before the Second Circuit Court of Appeals to argue that the District Judge in the Eastern District of New York properly dismissed a securities class action against AEL’s client, the former CFO of a publicly-traded company. The AEL team argued that an unrelated guilty plea for insider trading (in which AEL also represented the client) did not provide a basis for plaintiffs to assert a viable securities fraud claim in this matter. The team also argued that, as a threshold matter, the District Court correctly held that the plaintiffs did not have standing to assert a claim against AEL’s client given that the plaintiffs purchased shares prior to the improper trades that formed the basis of the client’s insider trading plea.

On November 30, 2021, Chief Judge Freda Wolfson of the U.S. District Court for the District of New Jersey sentenced an AEL client to a sentence of probation. The sentencing hearing marks the end of a year-long passport fraud and identity theft investigation. AEL negotiated a plea deal and the client pled guilty in July 2021 to a single count information of making false statements in a passport application. At the sentencing hearing, AEL partner David Eskew and associate Katherine Kulkarni effectively advocated for a probationary sentence highlighting the client’s critical role in his family and his significant history of community engagement and charitable works, among other things. The sentencing was marked by a unique outpouring of support for the client from over a dozen family, friends and community members who attended the hearing. In handing out the probationary sentence, Chief Judge Wolfson weighed the seriousness of the offense against the client’s otherwise “laudable life.” Following the sentencing, the client offered his thoughts on AEL’s representation throughout the case: “It didn’t take more than one phone call with Ken Abell and David Eskew for me to feel confident that I would be in good hands with their firm. People make mistakes, and you want these guys on your side to resolve it. The old cliché “we became like family” was created for a situation like mine with them.” 

AEL is a premier white collar criminal defense and litigation boutique that specializes in complex fraud cases and parallel investigations in the areas of healthcare fraud, securities fraud, bank and wire fraud, and computer fraud as well as qui tam / whistleblower cases and False Claims Act (FCA) cases. AEL is currently representing both individual and institutional clients in investigations and cases throughout the country in both state and federal fora, including the SDNY, EDNY, DNJ, NDNY, NY Attorney General’s Office, New York District Attorney’s Office and the King’s County District Attorney’s Office. AEL partner David Eskew is a former federal prosecutor with civil and criminal experience in both the EDNY and DNJ and served as the Deputy Chief of the Criminal Division and the Chief of the Health Care and Government Fraud Unit in the DNJ. Katherine Kulkarni is an associate of the Firm and previously served as an Assistant District Attorney in the Appeals Division of the New York District Attorney’s Office.        

On November 10, 2021, Law360 published an article co-authored by partner Ken Abell and associate Kate Kulkarni in their Expert Analysis Section. The article discusses the deepening Circuit split relating to the standard for government motions to dismiss in False Claims Act (FCA) qui tam actions. As discussed in the article, the Third Circuit adopted the Seventh Circuit’s standard for assessing such motions, which standard is different from either of the two competing standards previously set out by the D.C. Circuit and the Ninth Circuit Courts of Appeal. The full article can be found on our Law Blog or on Law360.  

AEL is proud to announce that on September 14, 2021, a U.S. District Judge for the Eastern District of New York sentenced an AEL client, a pain management doctor with practice locations in Manhattan, Brooklyn and Queens, to 1 year of probation and no fine on a misdemeanor charge for receiving, without knowledge or intent to defraud, a misbranded drug from a foreign source. At the sentencing, the government moved to dismiss a felony indictment it had previously filed, resolving all outstanding charges against the doctor.

The Court’s sentence of probation brings to a conclusion a multi-year investigation and prosecution of the doctor. After a lengthy investigation, the government initially charged the doctor in November 2019 with felony health care fraud in violation of 18 U.S.C. § 1347. In March 2020, a grand jury returned an indictment in which the government alleged over $800,000 in fraudulent billings. Throughout, the doctor consistently maintained his innocence and insisted that any billing errors were just that, mistakes. In the lead-up to trial, AEL attorneys Kenneth M. Abell, David M. Eskew, and Julia H. Sear presented exculpatory evidence to the government that they had found as part of the defense’s investigation and trial preparation. To their credit, the government attorneys ultimately agreed that an alternative resolution was the most appropriate resolution and the doctor pled guilty earlier this year to a non-intent misdemeanor of receiving a misbranded drug.

At sentencing, the government agreed that the prior indictment (and the conduct alleged in that indictment) should not be part of the Court’s sentencing consideration. As part of the doctor’s sentencing submission, multiple of the doctor’s patients submitted letters lauding the doctor for his empathy and work ethic. On September 14, the Court agreed that a short sentence of probation, with no fine, was the appropriate punishment. The client is thrilled with the result and looks forward to returning to his medical practice.

AEL is a premier white collar criminal defense and litigation boutique that specializes in federal parallel criminal and civil healthcare fraud cases on behalf of individuals and institutional clients in the EDNY, SDNY, and DNJ (among other districts across the country), including criminal cases and qui tam cases. Partners Kenneth M. Abell and David M. Eskew are both former federal prosecutors with both civil and criminal experience, and supervised the civil and criminal healthcare practices of their respective offices. Julia H. Sear is an associate of the Firm, with prior experience as an Assistant District Attorney and defense attorney.

AEL celebrates the announcement that Scott R. Landau was named to the The Best Lawyers in America 2022 list. Scott R. Landau was ranked as a “Best Lawyer” for Health Care Law. This most recent accolade continues a string of recognition for AEL’s elite boutique healthcare practice. Earlier this year, AEL was ranked by Chambers USA as a leading U.S. Healthcare law firm for 2021. Congratulations to Scott on this great recognition!

On May 20, 2021, Chambers USA, a world-renowned guide to the legal profession, announced its selection of AEL as a leading U.S. Healthcare law firm for 2021. According to Chambers, AEL is a “well-regarded healthcare boutique” that is “able to practice at the intersection of healthcare and white collar defense;” sources describe AEL as “very attentive and able to get down to the salient facts quickly.”

Chambers also recognized AEL partner Scott R. Landau  as a “ranked lawyer” in Healthcare and describes him as “an extraordinarily insightful litigator” and “an incredibly knowledgeable and excellent healthcare lawyer.”  Scott is the practice leader for AEL’s Healthcare Regulatory & Compliance Counseling, Data Privacy & Security, and Complex Commercial Litigation & Disputes practice areas.

Each year, Chambers acknowledges firms and specific attorneys following a rigorous review and vetting process that entails extensive interviews with lawyers and their clients. Assessments are based on qualities such as technical legal ability, professional conduct, client service, diligence, and commitment. To read more about Chambers and AEL’s firm and individual rankings, please visit https://chambers.com/department/abell-eskew-landau-healthcare-usa-5:62:12806:1:23254203

AEL once again navigated a doctor client out of a federal indicted healthcare fraud case, this time in the Eastern District of New York (EDNY). A pain management doctor with practice locations in Manhattan and Queens pled guilty on Thursday, May 6, 2021, to a misdemeanor superseding information charging him with receiving, without knowledge or intent to defraud, a misbranded drug from a foreign source in violation of 21 U.S.C. §§ 331(c) and 333(a)(1). In the plea agreement, the Government agreed to dismiss at the time of sentencing an indictment charging the doctor with a multimillion dollar healthcare fraud scheme. The misdemeanor plea resolves all of the conduct charged in the previously-filed criminal complaint, indictment and superseding information. As part of the plea, the Government agreed and the Court order that the bail condition prohibiting the doctor from billing Medicare and Medicaid be lifted, a restriction that had been in place since the outset of the case.

This incredible resolution for the client comes after intensive negotiations and multiple presentations by AEL to the EDNY U.S. Attorney’s Office in the weeks leading up to trial regarding exculpatory evidence that had been uncovered by AEL attorneys in the course of their internal investigation. The exculpatory evidence, of which the Government had previously been unaware, exonerated the defendant of the primary allegations in the indictment.  

This is the second time in the past three months that AEL has fought back charges in a federal indicted case on behalf of doctor clients. In March 2021, AEL announced that it had successfully negotiated a global resolution of a parallel criminal and civil cases pending in the Southern District of New York (SDNY) against a Manhattan-based vascular surgeon, which charges sprung from a qui tam complaint filed against the doctor. In that case, the Government agreed to a civil-only resolution, resolving its criminal indictment with a deferred prosecution agreement (DPA).

AEL is a premier litigation boutique that specializes in parallel criminal and civil healthcare cases on behalf of individuals and institutional clients in the SDNY, EDNY and DNJ. AEL Partners Kenneth M. Abell and David M. Eskew, both former federal prosecutors and healthcare Chiefs, handled the case.

Abell Eskew Landau LLP (AEL) successfully negotiated the resolution of parallel criminal and civil cases pending in the Southern District of New York (SDNY) against Dr. Feng Qin, a Manhattan-based vascular surgeon. Dr. Qin was previously indicted on healthcare fraud charges over two years ago and had been sued in a parallel civil qui tam action based upon the same alleged conduct. After years under the cloud of federal investigation and two pending cases, the cases finally concluded yesterday with a remarkable result for Dr. Qin. The SDNY United States Attorney’s Office (USAO) agreed to resolve the criminal indictment with a deferred prosecution agreement (DPA). So long as Dr. Qin abides by the terms of the DPA over the next year, the SDNY USAO agreed to dismiss its indictment against Dr. Qin and agreed that no further prosecution would be instituted in the SDNY related to the conduct alleged in the indictment. Separately, Dr. Qin agreed to resolve the civil complaint against him by paying a monetary amount of $783,200, spread out over the course of several years, and by agreeing to a period of Medicare exclusion.

The DPA and civil settlement follow more than a year of intensive negotiations between AEL and the SDNY USAO, which included presentation to the SDNY of several mitigating pieces of evidence on Dr. Qin’s behalf that AEL uncovered as part of its own investigation. As the DPA expressly recognizes, “after a thorough investigation it has been determined that the interest of the United States and [Dr. Qin’s] own interest will best be served by deferring prosecution in this District.” On the civil side, AEL also advocated for a financial inability to pay analysis, which resulted in the substantial reduction of the civil penalty to be paid by Dr. Qin and a lengthy payment plan.

Dr. Qin is a hard-working Chinese immigrant who put himself through medical school in China and again in the United States. Over the years, he built a thriving medical practice that treated largely underserved and needy immigrant communities in Manhattan and Queens. The parallel investigations took a deep emotional and financial toll on Dr. Qin and his family, and he is relieved that the cases have now been finally resolved without the stigma of a criminal conviction and with a potential path, after paying his civil settlement and serving his exclusion period, to resuming his medical practice in the future.  

This case once again highlights AEL’s expertise in navigating complex parallel investigations and litigating healthcare fraud cases and matter arising under the federal and state False Claims Act (FCA). The defense case was led by AEL Partners Kenneth M. Abell and David M. Eskew. You can read more about AEL’s Government Investigations and Enforcement Practice Area, White Collar Criminal Defense Practice Area, and FCA and Whistleblower Litigation Practice Area through the links.

AEL partner David M. Eskew co-authored an article with colleague Paul Murphy, a partner at Teitler & Teitler, entitled “Propensity – Persuasion and Prejudice: A Look at “Other Acts” Evidence and What the Defense Can Do About It.” The article was originally published in the American Bar Association’s Litigation Journal, Vol. 47, No. 2 (Winter 2021). The article focuses on the practical challenges presented by the admission of propensity evidence in state and federal criminal cases and offers analysis of real-life cases in which such evidence had a featured role. In the article, David and Paul offer practical tips on defending against the dreaded propensity evidence. The article can be read through the link below, in its entirety on our blog, or in the latest edition of the ABA Litigation Journal.

Abell Eskew Landau LLP (AEL) is proud to announce that it has obtained for its client, Dr. Feng Qin, a Deferred Prosecution Agreement (DPA) from the United States Attorney’s Office (USAO) for the Southern District (SDNY). Dr. Qin was previously indicted over two years ago with one felony count of health care fraud. So long as Dr. Qin complies with the terms of the DPA, which include entering into a civil settlement agreement and refraining from violating the law, the government has agreed to dismiss the indictment and no further prosecution will be instituted in the SDNY related to the conduct alleged in the indictment.

The DPA follows more than a year of intensive discussions, during which AEL presented mitigating and exculpatory evidence to the SDNY, and expressly recognizes that the government ultimately “determined that the interest of the United States and [Dr. Qin’s] own interest [are] best served by deferring prosecution in this District.” Dr. Qin is happy to move on with his life and career without a criminal conviction.

AEL founding partners Kenneth M. Abell and David M. Eskew, who served as lead counsel on Dr. Qin’s case, previously served as federal prosecutors and chiefs of the civil healthcare fraud unit in the U.S. Attorney’s Office for the Eastern District of New York (EDNY) and the criminal healthcare fraud unit in the U.S. Attorney’s Office for the District of New Jersey (DNJ), respectively, and are expert at handling parallel investigations and cases. As these results show, AEL is uniquely positioned to navigate parallel investigations and prevail upon the government that in appropriate circumstances civil resolutions can best serve justice. AEL currently represents multiple institutions and individuals (including physicians) in the midst of parallel federal investigations (both pre and post-charge), and in every case works tirelessly to achieve favorable outcomes for our clients.

AEL is proud to announce the successful resolution of a multi-year investigation involving one of its individual clients, a prominent New York-based obstetrician/gynecologist. On November 16, 2020, AEL finalized a highly favorable civil resolution with the New York Attorney General’s Office (NYAG). The case arose from a years-long investigation by the NYAG under the New York State version of the False Claims Act. After years of investigation and months of negotiation, AEL ultimately convinced the State to resolve the matter as a relatively small overpayment, instead of a False Claims Act violation, with no admissions by the client of wrongdoing, no penalties, and no exclusion from billing the Medicaid program. The client stated, “Ken Abell and his team recently represented me in a case brought against me by a government agency. I must say his representation of me went above and beyond your typical law firm. He understood my concerns that I was being treated unfairly and went the extra mile to settle the case in my favor. I am sure I would have had a much worse result with other legal representation. I highly recommend him and his team if you need his field of law. I know I will call him for my next legal need. I have already recommended his firm to another friend.” AEL prides itself of client-focused representation and excels at representing both institutions and individuals in parallel civil/criminal enforcement actions and investigations, especially in the healthcare industry. AEL Partner Ken Abell was lead counsel on the case.

Abell Eskew Landau LLP partner Scott R. Landau commented today in a Law360 article concerning the upcoming trial of ex-Theranos CEO Elizabeth Holmes. Defense counsel has asserted a mental health defense in the upcoming and much-anticipated March trial in the Northern District of California federal court. In this article, Scott R. Landau weighs in on the difficult question of the fiduciary duties of a general counsel to a company’s board of directors when the CEO is in crisis. Read the full article through the link below.

AEL Partner Kenneth M. Abell was quoted in an August 18, 2020 article in Law360 regarding the Seventh Circuit’s recent decision in U.S. ex rel CIMZNHCA LLC v. UCB, Inc., et al, which laid out a new way to assess DOJ motions to dismiss qui tam / whistleblower actions under the federal False Claims Act (FCA). AEL routinely represents hospitals and other providers in government investigations and enforcement actions and qui tam / whistleblower litigation, and are experts in the federal False Claims Act.

On June 6, 2020, Law360 featured an Article by AEL founding partner Kenneth M. Abell in their Expert Analysis Section. The Article, entitled “FCA Ruling Shows Importance Of Relator As Original Source” dissects the recent decision by the U.S. Court of Appeals for the Second Circuit in U.S. ex rel. Hanks v. Florida Cancer Specialists, which reversed and remanded a decision by the District Court for the Eastern District of New York. In the Hanks decision, the Second Circuit analyzed the well-tread (and still highly important) False Claims Act (FCA) concepts of the public disclosure bar, the first-to-file rule, and the original source exception. Follow this link to read the Article. AEL’s three founding partners all served as Assistant U.S. Attorneys and each conducted multiple, sophisticated, high stakes parallel investigations under the False Claims Act (FCA). As a result, AEL has extensive expertise in the False Claims Act and white collar civil and criminal government investigations and enforcement actions. AEL represents major hospital systems and other private companies in high stakes qui tam / whistleblower actions and commercial litigation.