Posts from April 2014.
Overpayment audits of physicians are common place and, indeed, should now be expected. When conducting such audits, Medicare auditors often include not only random sampling as an audit technique but have also extrapolated the results of that random sampling to arrive at overpayment claims that can be much larger. But is extrapolation legal? In a public payor (i.e., Medicare) audit, the answer is yes. For example, the Medicare Managed Care Manual not only requires that Medicare Advantage plans develop auditing systems, it specifically recognizes that auditors may extrapolate the ...

In 1995, the Private Securities Litigation Reform Act ("PSLRA") was passed to limit frivolous and unwarranted securities lawsuits. 15 U.S.C. §78u-4. While private securities litigation is an indispensable tool in which defrauded investors can recover their losses, such litigation has led to nuisance filings, targeting of deep-pocket defendants, and vexatious discovery requests in attempts to, among other things, extort large settlements. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006). To combat these actions, the PSLRA changed the pleading ...

Posted in: SLUSA

The SEC famously announced last year that it would insist upon admissions in settled cases involving egregious conduct - instead of its long-standing "neither admit nor deny" rubric. But its recent Scottrade action has the industry wondering if Commission staff are adhering to that standard. Scottrade entered an Offer of Settlement in administrative proceedings, admitting the Commission's factual and legal findings of books-and-records violations. A software code change in March 2006 inadvertently caused Scottrade's system to omit Error Account trades from its ...

Posted in: SEC
The Financial Industry Regulatory Authority ("FINRA") has, in recent months, increased its regulatory focus on investor awareness regarding closed-end funds ("CEFs"). In October of last year, FINRA issued an Investor Alert entitled "Closed-End Fund Distributions: Where is the Money Coming From." The alert sought to educate investors about CEFs and, specifically, about the sources of the periodic guaranteed distributions that make CEFs attractive to investors. This alert followed on the heels (relatively speaking) of six-figure fines levied against Merrill Lynch and UBS in ...
FINRA has submitted a proposal to the SEC to adopt FINRA Rule 2243 (Disclosure and Reporting Obligations Related to Recruitment Practices). In FINRA's words, Rule 2243 would require, in some cases, "specific disclosure by the recruiting member firm of the financial incentives a representative receives as part of his or her relationship with the new firm. The recruiting member firm would be required to provide the disclosure before a former retail customer of the representative makes a final determination to transfer an account to the new firm." Specifically, disclosure would be ...
Posted in: FINRA, SEC
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