Benjamin N. Gluck

Health Care-Related Matters

Secured a non-custodial sentence for a former pharmacy owner in a long-running federal healthcare fraud case with alleged loss amounts as high as $60 million.

Achieved a complete dismissal of all counts of a 20 count criminal complaint against a doctor that the state has described as “Public Enemy No. One” of the Medi-Cal system. The complaint alleged millions of dollars in fraud but following a lengthy preliminary hearing, the Court found the state failed to establish probable cause and dismissed the entire complaint.

Won dismissal of the 21 most serious charges in a high profile grand jury indictment against two physicians, a chiropractor, and eight employees and associates of a workers compensation healthcare provider. Each of the 21 now-dismissed counts carried a potential life sentence. Prosecutors alleged the defendants “permanently disfigured” 21 workers compensation patients in the course of committing insurance fraud by allowing a Physician’s Assistant to conduct all or portions of surgical procedures. The Los Angeles County District Attorney’s Office has described this case as the largest health care fraud in California history.

Successfully obtained a pre-trial dismissal of murder charges against the founder of a publicly traded company that runs substance abuse facilities. The case, which was prominently featured in local and national media, stemmed from a resident’s death at one of the company’s facilities in the state, and marked the first time in California history that murder charges were brought on such a theory of corporate liability.

Obtained dismissal of 89 out of 90 counts, including counts of insurance fraud and involuntary manslaughter, on behalf of client accused of allegedly masterminding a $100 million medical workers’ compensation fraud scheme. Mr. Gluck argued that the indictment, which had previously been amended, violated their client’s constitutional and statutory rights based on the grounds that it’s illegal to add additional counts to an amended indictment without returning to the grand jury. Furthermore, the grand jury never found probable cause, a requirement for a criminal defendant to be prosecuted for a felony. After obtaining an order from the California Supreme Court requiring the review of the Orange County District Attorney’s grand jury practices, the Court of Appeal granted Mr. Gluck’s writ petition, ultimately resulting in the Court dismissing all but one count.

Reached a settlement with the SEC in our representation of the co-president and COO of the second largest publicly traded health care company. Mr. Gluck defended the executive in allegations of $2 billion in False Claims Act violations, and securities and health care fraud. In addition, he defended the executive in the DOJ criminal investigation, which resulted in no charge, and achieved a favorable civil settlement with the SEC.

Advised and represented a major cancer hospital in an internal investigation triggered by billing practices of a doctor.

Preserved an oncologist’s practice at trial on claims of unapproved medication use. The government declined to offer a reasonable settlement and demanded our client receive eight years in prison. Mr. Gluck took the case to trial and achieved an outcome of straight probation with no cessation of practice. The doctor’s story is in development for a Hollywood movie.

Represent numerous clients in false claims actions involving compound medications, durable medical equipment, in-home health assessments, psychiatric referrals, cardiac testing, and many other health care related areas.

Represented the country’s largest Internet pharmacy service provider. The government announced its intent to charge our client with 83 felony drug trafficking counts, which carried decades of prison time. Mr. Gluck made several persuasive presentations showing that the government’s theory was legally defective. The government dropped the threat and the matter was resolved for a single strict-liability misdemeanor and some community service. Afterwards, the National Federation of State Boards of Pharmacy and other government regulatory groups invited Mr. Gluck to give this same presentation to them.

Represented a licensed nurse at a skilled nursing facility who, along with twelve other nurses, was indicted and arrested on charges of felony elder abuse. The Attorney General’s Office had conducted five days of video surveillance of the nurses’ activities. Mr. Gluck crafted and presented a motion to dismiss, which was granted by the court, and charges against all twelve defendants were dismissed. The Attorney General’s Office re-filed the charges under a different theory but Mr. Gluck successfully convinced the Appellate Department to order those charges dismissed as well. This decision established new, favorable law for all providers in California and Mr. Gluck was invited to speak about it to various industry groups.

Defended a doctor charged with drug trafficking arising from his alleged prolific prescribing of opiate pain medicine. The sentence imposed was a fraction of what the government demanded and was criticized for its leniency by the Los Angeles Times. The government was so upset by the sentence that, in an exceedingly rare move, it appealed our result.

Represented a durable medical equipment provider who was arrested and charged with defrauding Medi-Cal out of more than $4 million. In presentations to the prosecutors, Mr. Gluck argued that his client’s conduct was within regulations. Based on these arguments, the prosecutors dismissed the fraud charges and allowed the client to settle a non-health-care-related misdemeanor and time payments of less than a tenth of the amount at issue.

Represented successfully a chain of kidney dialysis centers against qui tam allegations that the chain overcharged Medicare for drugs.

Defended claims of unlicensed and unapproved products / medications on behalf of oncologists, dermatologists, cardiologists and other medical specialists against claims of using unlicensed products, including “generic” Botox, Viagra, cancer medications, IUD’s, and other non-FDA certified products.

Additional Representative Matters

Obtained recovery of tens of millions of dollars in cash and valuables on behalf of scores of clients in the US Private Vaults seizure matter.

Successfully achieved a complete return of a cryptocurrency account worth millions of dollars after convincing the government to walk away from it.

Achieved a significant and favorable outcome on behalf of apparel company owner who faced criminal charges of underpayment of tax and duty by $35 million and money laundering over $80 million. Convinced Judge to decrease sentence to twelve months and one day in custody, rather than the five years recommended by the Sentencing Guidelines and demanded by the government.

Defended West Coast branch of a company specializing in the international transportation of valuables, and accused of money laundering. The trial ended in a jury hung 10-2 for acquittal. Another defendant had previously been convicted in a trial in New York and received thirteen years in prison. Eventually, Mr. Gluck helped obtained a complete dismissal of criminal charges against his client.

Defended one of the largest merchant-side credit card processors in a claim arising from fraud allegedly perpetrated by one of its merchant customers. After quickly winning a motion to dismiss that substantially reduced the amount in dispute to approximately $6 million, we won a dismissal on summary judgment.

Successfully represented a national newspaper being investigated by the U.S. Attorney’s Office for improper disclosure of private medical records.

Defended a religious community in a tax, money laundering, and money remitting prosecution. After winning a motion to suppress a search, a settlement was struck on the eve of trial with the dismissal of all counts against four of the five organizations, and a mutually acceptable fine against the fifth.

Published Cases

• United States v. Daniel Louis Delaney, 427 F.3d 1227 (9th Cir. 2006)
• Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000) (reversing penalty phase in capital case)

Publications

• Author, "Developments in Federal False Claims Act Litigation," Daily Journal, July 2023
• Author, "Avenues for Relief After a Law Enforcement Search of a Medical Provider," Daily Journal, November 2022
• Quoted, “Something Went Sideways When the FBI Confiscated the Contents of Safe Deposit Boxes in an LA Bank,” Esquire, September 2021
• Quoted, “FBI to Return Seized Funds After Calling Plaintiff A Drug Dealer,” Daily Journal, August 2021
• Contributor, “California: An Introduction to Litigation: White-Collar Crime & Government Investigations,” Chambers and Partners USA, May 2021
• Quoted, “FBI wants to keep fortune in cash, gold, jewels from Beverly Hills raid. Is it abuse of power?” Los Angeles Times, June 2021
• Quoted, “The FBI Seized Heirlooms, Coins, and Cash From Hundreds of Safe Deposit Boxes in Beverly Hills, Despite Knowing ‘Some’ Belonged to ‘Honest Citizens’,” Reason, May 2021
• Quoted, “After FBI seizure of safe deposit boxes in Beverly Hills, legal challenges mount,” Los Angeles Times, April 2021
• Quoted, “Judge Declines to Dismiss Case Over Attorney-Client Privilege Violations,” Daily Journal, February 2019
• Interviewee, “Rainmaker Q&A: Bird Marella’s Benjamin Gluck,” Law360, September 2016
• Co-Author, “FedEx Indictment Creates Bad Incentives,” Daily Journal, August 2014 
• Author, “Some Thoughts About Advising Clients After the Amendments to the False Claims And Anti-Kickback Statutes,” ABA White Collar Crime Committee National Conference, 2011
• Quoted, “Wide Awake and Under the Knife,” Self Magazine, January 2011
• Author, “Expert Opinion Supporting Lack of Intent To Defraud: Distribution of Misbranded Drugs,” ABA White Collar Crime Committee National Conference, 2010
• Quoted, “Judge Slams D.A., Orders Assets Returned,” Los Angeles Daily Journal, August 2010
• Quoted, “Physician Wins Ruling Over Bank Accounts,” Los Angeles Times, August 2010
• Author, “Treating Secular Law Too Much Like Halacha,” Shma.com, December 2009
• Quoted, “Drug Smuggling Doctor Gets Sentenced To Probation,” Daily Bulletin, September 2009
• Author, “More Than One Way To Skin A Cat: Prosecuting Internet Prescribing,” ABA Health eSource, October 2006
• Author, “Presenting Needles From Haystacks: Summary Exhibits in an Age of E-Discovery and Data Mining,” ABA National Institute on White Collar Crime, March 2006
• Co-Author, “Waiver of Copayments as False Claims,” ABA National Institute on Healthcare Fraud, June 2002 
• Co-Author, “A Patriotic Critique of the PATRIOT Act,” Los Angeles Lawyer, No. 11, February 2002 
• Co-Author, “Medicare Cost Report Certification: The Government Asks Too Much,” Health Care Fraud and Abuse Newsletter, January 2001
• Co-Author, “Recent Developments in Money Laundering,” ABA-CLE Publication on White Collar Crime, 2001