In February, Endo Pharmaceuticals settled a protracted nine-year whistleblower lawsuit with the federal government for $193 million dollars. As a result, the whistleblower, former Endo sales rep, Peggy Ryan, thought the years-long saga of living a double life as a wired-up informant were over. However, her liberation and payment for her bravery are currently on hold according to her attorneys at the James Hoyer Investigative Law Firm in Tampa, Florida. Ms. Ryan's lawyers claim that she is a victim of an attempted shakedown by attorney Scott Simmer of the law firm Blank Rome.
Ms. Ryan's lawyers contend that Mr. Simmer has a business model that reeks of unethical opportunism. According to the Hoyer Firm, their research shows that Mr. Simmer has a history of filing whistleblower lawsuits after a company is already under investigation. Reportedly after filing, he demands a large portion of the whistleblower award and if his request isn't met, he postures that he will launch an attack on the Rule 9(b) sufficiency of the first-filed relators. Despite the fact that there is no procedural mechanism to intervene in another relators case, no standing to seek the dismissal, and no viable arguments as to why the case should be dismissed, Mr. Simmer and his cohorts have reportedly found susceptible prey in the past.
In March of 2013, Par Pharmaceutical Companies settled a whistleblower lawsuit with the federal government for $45 million dollars. In that case, Mr. Simmer represented a client who was the third of three to file in July of 2009. However, prior to his filing, on March 27, 2009, Par filed an 8-K with the SEC and disclosed that the DOJ was investigating them for sales and marketing of their brand name product, Megace, the very drug at the center of the aforementioned settlement. Does that mean it was great timing by Mr. Simmer or something more sinister? That I don't know, but what I do know is that most firms would have performed due diligence and been dissuaded because of first to file concerns.
The true lead counsel in the Par Case, NYC-based attorney Timothy McInnis, said that, "he would be disappointed if an attorney knowingly filed a second in time qui tam complaint with the intention of trying to pressure the first to file relator into relinquishing some part of the relator's share."
As of February 27, 2014, Mr. Simmers' biography on the Blank Rome website stated that he was "lead counsel" in eight of some of the most noted healthcare whistleblower cases in history -- including the Par and Endo cases. As a whistleblower who was previously unaware of Mr. Simmer, I found it odd, for example, that he purported to be lead counsel on the 2009 multi-billion dollar Pfizer case. That one, in particular, stood out for me because I was certain that my attorneys at the preeminent law firm, Phillips and Cohen, in fact represented the lead whistleblower, thus making them lead counsel. After vetting the rest of Mr. Simmer's cases I have found that in only one of these cases would I consider him "lead counsel."
According to another prominent whistleblower attorney, "Simmer's accomplishments are still misleading because he doesn't identify where he stands in the pecking order."
I took special interest in this matter because nine days earlier I wrote an article about ethical whistleblowing. Ironically, step four of my 10-step guide specifically addressed this type of issue. So on February 27, 2014, I called Blank Rome to inquire about the Endo case and Mr. Simmer's resume. Kate Tavella, Director of Communication for Blank Rome later sent me an email stating that, "it is our policy not to comment on pending litigation." Incidentally, it appears that Blank Rome doesn't always adhere to its own policy. Nonetheless, on February 28, 2014, Mr. Simmer's biography was changed.
The Hoyer firm, however, was willing to share with me details of their negotiations to date, explaining how Mr. Simmer first demanded 50 percent of the whistleblower award, which he inexplicably then dropped to 30 percent. He then allegedly implied that if his demands weren't met, he would "blow up" Ms. Ryan's case. The stakes are very high, as there are tens of millions of dollars at issue, and it is worth looking at the contribution of each firms' clients.
Ms. Ryan first filed her case in 2005 and shortly thereafter began two years of unconditional and risky cooperation with the FBI. During that period she used various devices to record over 200 hours of conversations and meetings. In addition to turning over critical internal documents, Ms. Ryan used her expertise and assisted in drafting the subpoena that Endo received in 2007. Despite the turn-over with government officials, Ms. Ryan and her lawyers remained the only consistent piece to this case until its fruition. This is underscored by the unprecedented eighteen minute documentary her lawyers made in 2011 to educate new criminal and civil agents on the case.
On the other hand, Mr. Simmer filed on behalf of his client in 2010 after the case was essentially baked and, according to the Hoyer firm, Simmer's client added no additional information to what was covered in February's settlement. However, Mr. Simmer will have an opportunity to explain to a court why his client deserves a share of the settlement, regardless of what Ms. Ryan's attorneys think.
Whistleblowers (the kind who assist with recovering money for the U.S. Treasury) are often perversely ostracized. As a several time successful whistleblower myself, I had to think long and hard about exposing this matter and whether it would bring unfair disrepute to whistleblowers and the lawyers who represent them. However, whistleblowing, like everything in this world, is not immune to duplicity. Therefore, I decided that flushing out possible examples of whistleblower trolls is actually good for the industry. As they say, sunshine is the best disinfectant. As whistleblowers, we are really supposed to be believe that. So I say shine brightly, regardless of where it hits.
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