Jeffrey Wertkin

Jeffrey Wertkin is a graduate of Georgetown University Law Center where he received a J.D and a Ph.D. He served as a trial attorney in the civil division of the United States Department of Justice from 2010 to April 2016. He was a trial attorney and partner at the law firm Akin Gump Strauss Hauer & Feld from April 2016 until he was dismissed following his arrest by the FBI on January 31, 2017.

Legal career

Wertkin graduated from Haverford College in 1998 and received a law degree and doctorate from Georgetown University in 2002. He joined the Commercial Litigation Branch of the Civil Division of the Department of Justice in 2010 where he specialized in whistleblower cases. Wertkin’s role at the United States Department of Justice was critical in False Claims Act litigation, and his input was a critical factor in whether or not whistleblower cases were taken up or declined by the federal government.

He was an adjunct professor at Georgetown, teaching a class on federal agencies and administrative rule making at the university’s public policy school. He taught a six-week module at the Georgetown’s McCourt School of Public Policy in the spring of 2013 and 2015.

In April 2016, Wertkin joined the law firm Akin Gump Strauss Hauer & Feld as a partner. At the time, the law firm felt that Wertkin would be an "invaluable resource” because of his experience with whistleblower cases for the federal government. This type of lawsuit, also known as a qui tam case, lets people, usually employees, secretly turn in companies that are defrauding the government and collect a portion of the restitution.

Criminal arrest

According to a court statement filed by Special Agent William Scanlon of the F.B.I., Wertkin, using an alias, allegedly contacted a technology company and offered to sell a copy of a complaint in a secret whistleblower suit that was under seal. Wertkin allegedly told the tech company employee that it would be in his interest to buy the complaint “so the company could get out ahead of the investigation.” Wertkin requested $300,000 paid in Bitcoin to help provide anonymity. The technology company notified the FBI and agreed to record phone conversations and work with agents on a sting operation. After being provided a copy of some pages of the whistleblower suit in the mail because they were instructed not to use email, an exchange was arranged at a hotel in Cupertino, California. Wertkin’s contact at the technology company informed Wertkin that he would be sending a proxy to the exchange who would deliver the money and collect the documents. This person, however, was an FBI agent and not an employee of the company. The FBI agent was instructed to wear a Titleist baseball cap and to bring the cash in blue duffle bag and sit in a specific chair in the hotel lobby. When he did, Wertkin approached him, wearing a wig as a disguise, and handed him a copy of the secret legal document. Wertkin was arrested and stated, “My life is over” according to the criminal filing.

Employees at Akin Gump Strauss Hauer & Feld were shocked by the arrest. Equity partners at the firm averaged $2 million in individual profit last year. Wertkin was fired from the firm when they discovered the accusations. He now faces contempt-of-court and obstruction charges.

Whistleblower case implications

Wertkin’s role at the Justice Department was pivotal in False Claims Act litigation. His input was a critical factor in whether whistleblower actions were taken up or declined by the government, and he also helped lead a trial in a groundbreaking fraud case that the DOJ did not decide to pursue. David Stone, senior managing partner at Stone & Magnanini in New Jersey, was quoted as saying, "The big question here is, is this the first time he’s done this or is this a pattern of something that he started when he was at DOJ? If this is a pattern then these declination decisions in all these cases that he was a senior DOJ supervisor on are in question."

A review of federal court cases filed since 2011 shows that Wertkin was involved in at least seven False Claims Act-related matters.

Those cases in question include:

• UNITED STATES OF AMERICA; ex rel., et al., Plaintiffs, v. ASERACARE INC, et al., Defendants. CIVIL ACTION NO: 2:12-CV-245-KOB. Filed December 4, 2014, Decided. Wertkin helped lead the trial team in this case that alleged the hospice care corporation, AseraCare, Inc., carried out a scheme to defraud the government by taking reimbursements for ineligible patients. Wertkin’s consistently worked late and was up in the early morning working on the case.
• United States ex rel. DiMattia et al. v. Medco Health Solutions, Inc., No. 13-1285 (D. Del.). On May 20, 2015, the United States Department of Justice announced that pharmacy benefits manager Medco Health Solutions Inc. agreed to pay the government $7.9 million to resolve allegations that Medco’s arrangements with pharmaceutical manufacturer AstraZeneca violated the False Claims Act. Medco’s parent company, Express Scripts Holding Company, executed the settlement agreement on Medco’s behalf. Jeffrey Wertkin was the lead attorney on the case for the Federal Government.
• John Doe v. Medco Health Solutions Inc., et al., case number 1:11-cv-00684, in the U.S. District Court for the District of Delaware. Paul Dennis, a former Medco executive, is suing the company on behalf of the United States, California, Florida, and New Jersey claiming that Medco collected undisclosed illegal discounts from drug manufacturers without passing those savings to clients. In this ongoing False Claims Act case, the federal government declined to intervene on behalf of the plaintiff, requiring the plaintiff to continue with the case using private council. Continuing the prosecution after the government declines to intervene requires substantial resources of both attorneys and money, and it has been described by qui tam professionals in the field as a potentially long and miserable process. Wertkin’s input in that decision to opt out of the case was a “substantial” factor in that decision. Recent allegations against Wertkin have left at least one attorney involved in the ongoing case wondering if Wertkin’s behavior in the case was suspicious.
• United States ex rel. Kirk v. CareFusion et al., No. 10-2492. CareFusion paid $40.1 million to settle allegations of violating the False Claims Act by promoting off label use of its products. The government alleged that CareFusion promoted the sale of its drug ChloraPrep for uses that were not approved by the FDA. ChloraPrep is the commercial name under which CareFusion produced the drug chlorhexidine, used to clean the skin before surgery. Chlorhexidine-alcohol has been proven to be a superior cleansing product when compared to the other popular cleansing agent, povidone-iodine, therefore preventing surgical site infections after clean-contaminated surgeries. Wertkin was the lead attorney for the federal government in this case, serving as Assistant Attorney General.

References

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