United States: Health Care Enforcement Quarterly Roundup - July 2018

Introduction

Over the past 18 months, we have closely monitored the Trump administration's approach to health care enforcement issues, with a particular focus on whether prosecution of the False Claims Act (FCA) remains a priority under the new administration. We have tracked these developments on our FCA Update blog and have discussed observations with our clients. In an effort to share those insights more broadly, we are pleased to introduce the inaugural issue of our Health Care Enforcement Quarterly Roundup. This quarterly roundup will provide an overview of the key enforcement trends our team of seasoned litigators and regulatory thought leaders are seeing in the health care industry.

From continued interpretation of the US Supreme Court's landmark Escobar decision, to the issuance of new policies from US Department of Justice (DOJ) leadership, to expanded use of the FCA, the first quarter of 2018 set the tone for a busy year in health care enforcement.

Courts Continue to Interpret Escobar Favorably for FCA Defendants

One of the most significant developments in FCA litigation in recent years was the Supreme Court's unanimous 2016 ruling in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). Escobar held that the "implied certification" doctrine can be a basis for FCA liability but that, among other things, any falsity must be "material" to the government's decision to pay that claim.

The implied certification theory of FCA liability is based on the notion that in submitting a claim for payment, the claimant implicitly certifies compliance with statutory, regulatory or contractual requirements. If the claimant has not complied with such a requirement, so the theory goes, the claim is false. The Supreme Court held in Escobar that for this theory to be viable, several hurdles must be surmounted by a relator or the government: (1) there must be an express representation about the goods or services provided on the claim for payment; (2) compliance with the provision at issue must be "material" to the government's decision to pay that claim; and (3) the defendant must know it is material. In its decision, the Supreme Court elaborated on the meaning of what it described as a "demanding" and "rigorous" materiality standard. Among other things, the Court stressed that "if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material." The Court also made clear that materiality is an appropriate issue for consideration at the motion to dismiss stage. Thus, after Escobar, materiality is an important tool that defendants can use at multiple stages of FCA litigation.

Over the course of 2017 and into the first quarter of 2018, we have been watching how the lower courts interpret and apply Escobar's demanding and rigorous materiality standard. In 2017, there was a remarkable series of district and appeals court decisions demonstrating that the Escobar standard has teeth, and that many courts were not hesitant to dispose of cases where the materiality of the alleged fraud was in doubt.[1]

The first quarter of 2018 indicates that this trend of favorable materiality rulings continues. For instance, in the first few months of the year, several district courts dismissed implied certification FCA complaints because they did not sufficiently allege materiality. [2] These cases demonstrate a willingness by the lower courts to assess materiality on the pleadings and without the benefit of fact discovery, an approach endorsed by the Supreme Court.  Historically, FCA plaintiffs typically argued that materiality was too "fact intensive" to resolve on a motion to dismiss, but the Supreme Court rejected this notion in Escobar. [3]

Materiality has also proved to be the death-knell of FCA cases at later stages of litigation. In a highly publicized case early in the quarter, a district court overturned a $350 million jury verdict, finding that the relator did not meet the Escobar materiality standard at trial because the government had long continued payments to the defendant, a nursing home, despite knowing about the nursing home's alleged record-keeping deficiencies. United States ex rel. Ruckh v. Salus Rehabilitation, LLC, et al., No. 8:11-cv-1303-T-23 (M.D. Fl. Jan. 11, 2018).

Of the many issues to emerge after Escobar, the one tackled by Ruckh has been the source of much litigation. Most courts agree with the proposition, which derives from the Supreme Court's opinion, that if the government continues to pay a provider's claims after becoming aware that the provider did not comply with applicable law or contract provisions, the relator (or, as the case may be, the government) simply cannot prove that the noncompliance was material under Escobar.

But not all courts are aligned on the reach of the Supreme Court's "continued payment" guidance. In United States ex rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890 (9th Cir. 2017), the relators alleged that Gilead concealed information regarding its compliance with certain FDA regulations. Gilead argued on a motion to dismiss that because the government continued to pay for the drug after learning of Gilead's FDA violations, those violations were not material to the government's payment decision. The district court dismissed the case, citing Escobar. But the Ninth Circuit reversed, holding that the relators had pleaded sufficient factual allegations to support materiality at the early stage of the case, despite continued payment by government payors such as Medicare and continued approval by the FDA. The court observed that "the parties dispute exactly what the government knew and when" and that "the issues raised by the parties are matters of proof, not legal grounds to dismiss relators' complaint."

In late December 2017, Gilead filed a cert. petition in the United States Supreme Court. Over the first quarter, the parties briefed this petition, and the case was considered at the Supreme Court's April 13, 2018 conference—where the Court invited the Solicitor General to express the views of the United States in the case. Without question, Gilead is an important case to watch in 2018, as the Supreme Court may decide to clarify the application of the materiality standard after Escobar.

Practice Note:  To date, cases interpreting the Escobar materiality standard have been largely favorable to FCA defendants. The issue of materiality should be considered at the outset of any FCA investigation or qui tam litigation, and every FCA complaint should be assessed to determine whether it adequately pleads this essential element. If the complaint survives a motion to dismiss, discovery should be used to develop the materiality defense for use on summary judgment. In short, whether at the front-end or at later stages of litigation, the materiality standard is a potent weapon in the defense arsenal.

[1] See United States ex rel. D'Agostino v. ev3 Inc., 845 F.3d 1, 7 (1st Cir. 2016) (holding that the district court properly granted defendant's motion to dismiss because CMS's continued reimbursement for a particular device after the relator alleged it violated FDA requirements "casts serious doubt on the materiality of the [alleged] fraudulent representations."); United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 490 (3d Cir. 2017) (affirming dismissal of FCA claims because relator failed to sufficiently plead materiality where he essentially conceded that CMS would reimburse claims even with actual knowledge of the alleged deficiencies); Abbott v. BP Exploration & Production, Inc., 851 F.3d 384, 388 (5th Cir. 2017) (holding that district court correctly granted summary judgment where, after a "substantial investigation into Plaintiffs' allegations," the allegedly non-compliant activities were allowed to continue).

[2] See, e.g., United States ex rel. Schimelpfenig v. Dr. Reddy's Laboratories Limited, et al., No. 11-4607 (E.D. Pa. Mar. 9, 2018); United States ex rel. O'Neill v. Somnia, Inc., No. 1:15-cv-00433 (E.D. Cal. Feb. 2, 2018); United States v. Strock, et al., No. 15-cv-0887 (W.D.N.Y. Jan. 31, 2018); United States ex rel. Durkin v. County of San Diego, No. 15-cv-2674 (S.D. Cal. Jan. 11, 2018); United States ex rel. Schiff v. Norman, et al., No. 8:15-cv-1506-T-23 (M.D. Fl. Jan. 2, 2018).

[3] Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016); see infra note 3.

DOJ Leadership Reaffirms Expanded Enforcement of the FCA to Combat Opioid Epidemic

In his March 2018 confirmation hearing, President Trump's nominee to head DOJ's Civil Division, Joseph "Jody" Hunt, signaled that DOJ would continue with its aggressive enforcement of the FCA. In fact, Hunt said that he and the Trump administration are focused on "vigorously enforcing the [FCA]" and "aggressively" combating the opioid epidemic by using the FCA as one of its enforcement tools. Mr. Hunt commented that the Civil Division will focus on holding accountable "opioid manufactures, distributors, and others in the distribution and prescription chain."  Mr. Hunt signaled that he will deploy all civil and criminal remedies to accomplish these enforcement goals. [1]

Mr. Hunt's comments follow DOJ's announcement of the Prescription Interdiction and Litigation (PIL) Task Force on February 27, 2018. [2] In a speech by Attorney General Jeff Sessions, DOJ announced that the Task Force "will use criminal and civil actions to ensure that distributors and pharmacies" are obeying federal regulations created to prevent the improper prescribing of medications.[3] The Task Force plans to use the FCA as one of a number of enforcement tools to "crack down on pain-management clinics, drug testing facilities, and physicians that make opioid prescriptions." [4] The Task Force will look at every level of the opioid distribution system, from manufacturer to distributor, and will coordinate with multiple agencies, including the Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA). It will also consider a wide array of enforcement approaches, including the FCA, among other civil, criminal and regulatory enforcement measures.

In a separate speech before the Federal Bar Association's Qui Tam Conference on February 28, 2018, Deputy Associate Attorney General Stephen Cox echoed the Attorney General's statements, emphasizing the power of the FCA to reach all levels of the opioid distribution chain. [5] Cox highlighted DOJ's September 2017 settlement with Galena Biopharma, in which the company paid $7.55 million to settle claims that it paid kickbacks to physicians for prescribing a fentanyl-based opioid. [6] At the time, the Acting United States Attorney for the district where the charges were brought also characterized the prosecution as part of the battle against opioids. Cox noted that two of the physicians involved in the Galena case were tried, convicted, and sentenced to prison for, among other things, prescribing opioids outside the usual course of professional practice.

On February 27, 2018, Attorney General Sessions also announced that DOJ intended to file a statement of interest in multidistrict litigation currently pending in the United States District Court for the Northern District of Ohio (17-MD-2804). In early March, DOJ filed a statement identifying several potential recovery statutes and other legal considerations, and sought 30 days to decide whether to participate in the proceedings. DOJ followed up on April 2, 2018, filing a motion seeking to "(1) to participate in forthcoming settlement discussions . . . and (2) to participate as friend of the Court by providing information to the Court and the parties to facilitate effective non-monetary remedies to address problems arising from the national opioid crisis."

It is also important to note that state and local governments are likely to pursue a similar approach to combatting the opioid crisis through enforcement actions under state false claims acts. In November, the St. Louis County Minnesota Board of Commissioners authorized a lawsuit on its behalf in state court. On March 14, the county filed a 10-count complaint alleging, among other things, violations of the state's FCA. [7]

Practice Note:  The national opioid crisis is a public health emergency that will be a top law enforcement priority for the foreseeable future. DOJ has steadily increased its public statements about the crisis and, with the establishment of the PIL Task Force, has indicated that it intends to investigate every level of the opioid distribution system. DOJ's insertion into the Ohio MDL may be a harbinger of what is to come—greater involvement from DOJ in existing cases and increased volume of government investigations and litigation.

[1] Senate Judiciary Committee, Nomination of Joseph H. Hunt to be Assistant Attorney General, Civil Division Questions for the Record (Mar. 7, 2018), https://www.judiciary.senate.gov/imo/media/doc/Hunt%20Responses%20to%20QFRs.pdf.

[2] Press Release, US Dep't of Justice, Attorney General Sessions Announces New Prescription Interdiction & Litigation Task Force (Feb. 27, 2018), https://www.justice.gov/opa/pr/attorney-general-sessions-announces-new-prescription-interdiction-litigation-task-force.

[3] Id.

[4] Id.

[5] Press Release, US Dep't of Justice, Deputy Associate Attorney General Stephen Cox Delivers Remarks at the Federal Bar Association Qui Tam Conference (Feb. 28, 2018), https://www.justice.gov/opa/speech/deputy-associate-attorney-general-stephen-cox-delivers-remarks-federal-bar-association.

[6] Press Release, US Dep't of Justice, Galena Biopharma Inc. to Pay More Than $7.55 Million to Resolve Alleged False Claims Related to Opioid Drug (Sept. 8, 2017), https://www.justice.gov/opa/pr/galena-biopharma-inc-pay-more-755-million-resolve-alleged-false-claims-related-opioid-drug.

[7] St. Louis County files lawsuit against opioid manufacturers, Duluth News Tribune (Mar. 14, 2018), https://www.duluthnewstribune.com/news/crime-and-courts/4417815-st-louis-county-files-lawsuit-against-opioid-manufacturers.

Guidance Memoranda Continue to Be Used by DOJ Leadership to Endorse Enforcement Priorities and Protocols

DOJ has long used guidance memoranda to reflect enforcement priorities and provide specific guidance to its prosecutors. This remains true in the Trump administration. In the first quarter of 2018, the new administration put its stamp on how it intends to handle FCA enforcement in the coming years.

The Granston Memo

On January 10, 2018, DOJ's Civil Division issued a memorandum to prosecutors handling qui tam FCA cases outlining circumstances under which the United States should seek dismissal of cases that "lack substantial merit." Authored by Michael Granston, the director of the Civil Division's Fraud Section, the so-called "Granston Memo" outlines seven factors that prosecutors should consider in determining whether to exercise DOJ's statutory authority to dismiss qui tam matters pursuant to 31 USC § 3730(c)(2)(A).

These factors include: (1) curbing meritless qui tams, "either because the legal theory is inherently defective, or the relator's factual allegations are frivolous;"(2) preventing parasitic or opportunistic qui tam actions, where qui tam cases duplicate pre-existing government investigations and "add no useful information;" (3) preventing interference with agency policies and programs; (4) "avoid[ing] the risk of unfavorable precedent;" (5) safeguarding classified information and national security interests; (6) preserving government resources; and (7) addressing egregious "procedural errors." In particular, the Granston Memo also notes that cases may be dismissed where the action is "both lacking in merit and raises the risk of significant economic harm that could cause a critical supplier to exit the government program or industry." What remains to be seen is how aggressively the United States intends to aid FCA defendants in these efforts.

While DOJ asserts that the Granston Memo merely reiterates existing statutory authority, the memo's detailed guidance opens the door for FCA defendants to advocate for the dismissal of frivolous relator cases.

The Brand Memo

Shortly after issuance of the Granston Memo, then-Associate Attorney General Rachel Brand issued a memorandum mandating that "[DOJ] litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable laws in [affirmative civil action] cases." [1] Agency guidance is not law. It does not have the force or effect of a statute or regulation. Nonetheless, for years, relators have cited the failure to comply with agency guidance as grounds for pursuing FCA claims.

The "Brand Memo" seeks to limit this trend, at least where the United States is considering intervention in a case. The memorandum effectively directs DOJ lawyers to limit the use of agency guidance as the sole basis for seeking authority to pursue an FCA enforcement action. [2] While the Brand Memo provides some flexibility for prosecutors to use agency guidance—e.g., using evidence that a defendant read guidance to prove knowledge—it generally represents a positive move for FCA defendants. It forces DOJ line attorneys to be more skeptical of the purported merits of qui tam suits that appear to rely on regulatory nitpicking by qui tam relators.

Once again, the ultimate effect of this memorandum on existing and future cases is not yet clear. Without question, the Brand Memo should have an effect on how DOJ thinks about and implements intervention decisions. But it has limits. Because it only controls the behavior of DOJ attorneys, it may not reduce the number of qui tam complaint filings that rely on regulatory missteps to establish the falsity of the claim. And, as with all DOJ guidance memoranda, the Brand Memo does not obligate the courts.

Practice Note:  It is too soon to measure the full impact of the recently issued Granston and Brand memos. What is clear, however, is that the Trump administration is putting its own stamp on FCA enforcement. While the Granston Memo provides additional ammunition to FCA defendants, it is not yet clear whether it will result in the dismissal of more cases. In contrast, the Brand Memo has more defined parameters and is likely to result in an adjustment in the types of cases in which the DOJ intervenes.

[1] Press Release, US Dep't of Justice, Associate Attorney General Brand Announces End To Use of Civil Enforcement Authority to Enforce Agency Guidance Documents (Jan. 25, 2018), https://www.justice.gov/opa/pr/associate-attorney-general-brand-announces-end-use-civil-enforcement-authority-enforce-agency.

[2] The Brand Memo bolsters Attorney General Sessions' November 2017 memorandum prohibiting DOJ from using its civil enforcement authority to convert agency guidance into binding rules.

DOJ Maintains Focus on FCA Enforcement against Individuals

In September 2015, DOJ issued the well-known "Yates Memo" (named for then-Deputy Attorney General Sally Yates), which focuses on individual accountability for corporate wrongdoing. In the years since issuance of the Yates Memo, DOJ has codified its policy around individual accountability for corporate wrongdoing in the US Attorney's Manual. Despite early commentary that raised questions about whether DOJ would continue to emphasize enforcement against individuals, cases over the past 15 months reflect a continued focus on individual accountability. In a recap of FCA enforcement in Fiscal Year 2017, DOJ announced that it had "continued to ensure individual accountability for corporate wrongdoing by pursuing FCA and other civil remedies to redress fraud by individuals as well as corporations."[1] DOJ highlighted several settlements with individual defendants, including the following cases:

  • To resolve United States ex rel. Delaney v. eClinicalWorks LLC, eClinicalWorks and three of the company's founders agreed to a combined $155 million settlement.[2] Additionally, three lower level employees (a developer and two project managers) were required to pay smaller amounts to resolve the individual claims against them ($15–50,000 each).[3]
  • In United States ex rel. Meehan v. Medstar Ambulance Inc., et al. the owners of Medstar Ambulance Inc. and the company agreed to a combined $12.7 million settlement.[4]

The trend continued in the first quarter of 2018. In February 2018, DOJ secured a $1.24 million settlement with Horizons Hospice, LLC and its owner to resolve FCA allegations that the company fraudulently billed Medicare and Medicaid for patients ineligible for hospice care.[5] In addition to settlements, DOJ had several recent trial victories against individual defendants accused of FCA violations. In late January 2018, nearly three years after the United States intervened, the ex-CEO and two marketing consultants at Health Diagnostics Laboratory were found liable by a DSC jury for over $17 million in Medicare fraud, which is automatically trebled under the FCA to over $51 million and is subject to as yet to be determined FCA penalties of $5,500 to $11,000 per claim. Health Diagnostics Laboratory previously settled with DOJ in 2015 for $47 million, but the government chose to pursue additional claims against individual defendants.[6]

At this point in 2018, the DOJ pipeline of individual liability cases that pre-dated the Trump administration is dwindling and the resolution of matters over the course of this year may be a significant indicator of the true direction FCA enforcement may take under this administration.

Practice Note:  In the first quarter of 2018, DOJ continued its push to impose FCA liability on individuals. Based on cases we are seeing across the health care industry, we expect this trend to continue.

[1] Press Release, US Dep't of Justice, Justice Department Recovers Over $3.7 Billion From False Claims Act Cases in Fiscal Year 2017 (Dec. 21, 2017), https://www.justice.gov/opa/pr/justice-department-recovers-over-37-billion-false-claims-act-cases-fiscal-year-2017.

[2] See Press Release, US Dep't of Justice, Electronic Health Records Vendor to Pay $155 Million to Settle False Claims Act Allegations (May 31, 2017), https://www.justice.gov/opa/pr/electronic-health-records-vendor-pay-155-million-settle-false-claims-act-allegations; United States ex rel. Delaney v. eClinicalWorks LLC, 2:15-CV-00095-WKS (D. Vt.).

[3] See Press Release, US Dep't of Justice, Electronic Health Records Vendor to Pay $155 Million to Settle False Claims Act Allegations (May 31, 2017), https://www.justice.gov/opa/pr/electronic-health-records-vendor-pay-155-million-settle-false-claims-act-allegations.

[4] See Press Release, US Dep't of Justice, Medstar Ambulance to Pay $12.7 Million to Resolve False Claims Act Allegations Involving Medically Unnecessary Transport Services and Inflated Claims to Medicare (Jan. 13, 2017), https://www.justice.gov/opa/pr/medstar-ambulance-pay-127-million-resolve-false-claims-act-allegations-involving-medically; United States ex rel. Meehan v. Medstar Ambulance. Inc., et al., No. 13-CV-12495-IT (D. Mass.).

[5] See Press Release, US Dep't of Justice, Hospice Company and Owner Agree to Pay $1.24 Million to Settle Two False Claims Act Whistleblower Lawsuits (Feb. 8, 2018), https://www.justice.gov/usao-wdpa/pr/hospice-company-and-owner-agree-pay-124-million-settle-two-false-claims-act; United States ex rel. Thomas v. Horizons Hospice LLC, No. 12-cv-315 (W.D. Pa.); United States ex rel. Mizak, et al. v. Horizons Hospice LLC, et al., No. 13-cv-1688 (W.D. Pa.).

[6] US ex rel. Lutz, et al. v. Health Diagnostic Laboratory Inc., et al., 9:14-cv-00230, (D.S.C.); US ex rel. Mayes v. Berkeley HeartLab Inc., et al., 9:11-cv-01593 (D.S.C.).

Private Equity Sponsor Named as FCA Defendant

DOJ also made news in February 2018 when it named a private equity firm as a co-defendant in United States ex rel. Medrano and Lopez v. Diabetic Care Rx, LLC d/b/a Patient Care America, et al., No. 15-CV-62617 (S.D. Fla.). The case involves allegations that Patient Care America (PCA), a Florida compounding pharmacy, paid illegal kickbacks to induce prescriptions for drugs reimbursed by TRICARE.

While DOJ routinely targets company executives—particularly in recent years—the addition of a private equity sponsor of a health care company as an FCA defendant is noteworthy. Here, the United States' complaint in intervention names as defendants PCA, two of its executives, and PCA's private equity sponsor (and ultimate owner). Discovery and motion practice—and potentially a trial—will determine whether the government can prove its allegations and theories in this case.

Practice Note:  While it is too early to tell whether the inclusion of a private equity sponsor as a defendant in Medrano is an outlier or is representative of a growing trend, this case is noteworthy. We will continue to monitor this case and any others that follow.

DOJ Continues Action against Medicare Advantage Plans, Showing Increased Focus on Intersection of the FCA and Managed Care

Last year, DOJ intervened in United States ex rel. Poehling v. UnitedHealth Group., Inc. (C.D. Cal.). In this case, DOJ alleged FCA violations relating to Medicare Advantage "risk adjustment" scores. Risk adjustment alters payments to MA plans to reflect expected costs associated with the health status of Medicare beneficiaries enrolled in MA plans.

In a ruling on a motion to dismiss in February 2018, the presiding judge in Poehling dismissed allegations that UnitedHealth had falsely attested to the accuracy of the risk adjustment scores. The judge allowed the case to proceed on a theory that the defendant had improperly avoided an obligation to refund the government for risk-adjustment related overpayments.

Poehling is one of several pending cases brought by DOJ and relators in district courts across the country in which MA plans are defendants.

Practice Note:  DOJ's intervention in Poehling reflects a shift towards government enforcement against MA plans. With enrollment in MA plans steadily increasing, it is likely that this trend will continue. We will continue to monitor Poehling and other cases pending in district court and report back in subsequent roundups.

Health Care Enforcement Quarterly Roundup

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions