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In re Wellcare Health Plans, Inc.

United States Court of Appeals, Eleventh Circuit

June 13, 2014

In re: WELLCARE HEALTH PLANS, INC., Petitioner

On Petition for Writ of Mandamus to the United States District Court for the Middle District of Florida.

For In re: WELLCARE HEALTH PLANS, INC., Petitioner: Gregory William Kehoe, Greenberg Traurig, LLP, Tampa, FL.

For Securities And Exchange Commission, Mandamus Respondent: Natalie Hirt Adams, Karin Bethany Hoppmann, Cherie Krigsman, Jay Gilchrist Trezevant, U.S. Attorney's Office, Tampa, FL; John J. Bowers, U.S. Department of Justice, Washington, DC; John Andrew Michelich, U.S. Department of Justice Criminal Division, Washington, DC.

For Attorney General, State of Florida, Mandamus Respondent: Pam Bondi, Stephanie Allison Daniel, Lisa Marie Raleigh, Office of the Attorney General, Tallahassee, FL.

For Service, Mandamus Respondent: Jeffrey A. Lamken, MoloLamken, LLP, Washington, DC; Nathan M. Berman, Jack E. Fernandez Jr., Lee Fugate, Marcos E. Hasbun, Morris Weinberg Jr., Zuckerman Spaeder, LLP, Tampa, FL; Lenard Barrett Boss, Cozen & O'Connor, Washington, DC; Michael Gregory Califano, Todd J. Cooper, Lauro Law Firm, Tampa, FL; Lauri Elizabeth Cleary, Stanley James Reed, Lerch Early & Brewer, Chtd., Bethesda, MD; Patrick M. Donahue, Wise & Donahue, Annapolis, MD; Peter Erik George, Laura Vaughan, George & Titus, PA, Tampa, FL; William Jung, Paul M. Sisco, Jung & Sisco, PA, Tampa, FL; John F. Lauro, John F. Lauro, PA, Tampa, FL; Robert A. Leventhal, Robert A. Leventhal, PA, Orlando, FL; Michael Patrick Matthews, Lauren Lisette Valiente, Foley & Lardner, LLP, Tampa, FL; Gregory Robert Miller, Beggs & Lane, Tallahassee, FL; Lawrence Robbins, Mark Thomas Stancil, Robbins Russell Englert Orseck Untereiner & Sauber, LLP, Washington, DC; Seth Paul Waxman, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC.

For Todd S. Farha, Mandamus Respondent: Alan E. Schoenfeld, Wilmer Cutler Pickering Hale & Dorr, LLP, New York, NY; Seth Paul Waxman, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC.

For Paul L. Behrens, Mandamus Respondent: Michael Patrick Matthews, Lauren Lisette Valiente, Foley & Lardner, LLP, Tampa, FL.

For William L. Kale, Mandamus Respondent: Lauri Elizabeth Cleary, James Bradford McCullough, Stanley James Reed, Lerch Early & Brewer, Chtd., Bethesda, MD; Larry Allen Nathans, Nathans & Biddle LLP, Baltimore, MD.

Before: HULL and JORDAN, Circuit Judges.

OPINION

Page 1235

BY THE COURT:

Petitioner Wellcare Health Plans, Inc. (" Wellcare" ) seeks a writ of mandamus declaring it a " victim" within the meaning of the Crime Victims' Rights Act (" CVRA" ), 18 U.S.C. § 3771, and the Mandatory Victims Restitution Act of 1996 (" MVRA" ), 18 U.S.C. § 3663A, and directing the district court to act accordingly.

After review of the record and the briefs of the parties, we deny Wellcare's petition.

I. BACKGROUND

A. Underlying Criminal Conduct

The U.S. Attorney for the Middle District of Florida filed a criminal information charging petitioner Wellcare with conspiring through its former officers and employees to defraud Florida healthcare programs. That same day, Wellcare entered into a deferred prosecution agreement. In

Page 1236

that agreement, Wellcare stipulated to a " Statement of Facts," wherein it admitted, inter alia, that, " acting through its former officers and employees," it " knowingly and willfully conspired . . . to execute . . . a scheme and artifice to defraud" Florida healthcare programs of approximately $40 million. Wellcare also agreed to pay $40 million in restitution and $40 million in civil forfeiture. And, Wellcare agreed to " fully cooperate" with the government's ongoing investigation into the fraudulent conduct.

After additional investigation, a federal grand jury indicted defendants Todd Farha (Wellcare's former CEO, President, and Chairman of the Board), Paul Behrens (Wellcare's former CFO and Senior Vice President), William Kale (Wellcare's former Vice President of Government and Regulatory Affairs), Peter Clay (Wellcare's former Vice President of Medical Economics), and Thaddeus Bereday (Wellcare's former Senior Vice President, General Counsel, Secretary, and Chief Compliance Officer) with conspiracy, making false statements, and healthcare fraud. Before the defendants' trial, the government designated Wellcare as an un-indicted co-conspirator in the ...


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