Michael M. Mustokoff

Michael M. Mustokoff, Partner
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103-4196
USA

Phone: +1 215 979 1810
Fax: +1 215 689 3607
Email: MMustokoff@duanemorris.com

Michael M. Mustokoff is a trial lawyer who, over the years, has represented clients in a variety of different types of disputes. He generally practices in the area of white-collar criminal defense and commercial litigation. He has had several notable victories in the appellate courts. He has successfully represented clients in civil RICO prosecutions and international antitrust cases. Mr. Mustokoff is also involved in the investigation and defense against fraudulent insurance claims, and the representation of healthcare providers in regulatory, civil and criminal proceedings. Mr. Mustokoff is a fellow of both the American College of Trial Attorneys and the American Bar Foundation. He is recognized annually by Philadelphia Magazine on their regional "Super Lawyers" listing.

He is a member of the Criminal Justice, Antitrust Law sections and the Section of Litigation of the American Bar Association, the Criminal Law and Civil Litigation sections of the Pennsylvania Bar Association and the Criminal Justice Section of the Philadelphia Bar Association. Mr. Mustokoff is a member of the American Health Lawyers Association, the National Association of Criminal Defense Counsel, the International Association of Arson Investigators, the Pennsylvania Defense Institute, the Defense Research Institute and the Health Care Financial Management Association.

He was chief of the Philadelphia District Attorney's Economic Crime Unit for four years and an assistant district attorney in that office for seven years before joining Duane Morris.

Mr. Mustokoff is a 1972 graduate of the University of Pennsylvania Law School and a graduate of Albright College.

Areas Of Practice

• White Collar Criminal Defense and Investigation
• Insurance Defense Litigation
• Internal Corporate Investigation
• Commercial Litigation
• Professional Responsibility Representation
• Appellate Advocacy
• Representation of Healthcare Providers in Regulatory, Civil and Criminal Proceedings

Representative Matters

• Lead trial counsel in a number of highly publicized cases:
  - Led the team of relators' counsel in United States ex. rel Wetta v. AstraZeneca, a Qui Tam action brought against AstraZeneca that resulted in a $520 million settlement.
  - Led the team of relators' counsel in the case of United States ex rel. Rudolph v. Eli Lilly, a Qui Tam action brought against Eli Lily that resulted in the pharmaceutical company pleading guilty and paying $1.415 billion, at the time the largest recovery in the history of the federal Qui Tam statute.
  - Secured a jury's acquittal of a day-care owner charged with involuntary manslaughter for having left a child in a parked vehicle, March 2010.
  - Represented a best-selling author in her libel suit against The Philadelphia Inquirer.
  - Represented the principal defendant in what the media labeled the "Thelma and Louise" murder case.
  - Led the plaintiffs' trial team in Fahey v. Capano.
  - Secured dismissal of the case against the client in Allstate v. AHP, December 2008.
• Appellate advocacy - has represented clients in the Federal Courts of Appeal in the Second, Third and Fourth Judicial Circuits, as well as the Superior and Supreme Courts of Pennsylvania. The Pennsylvania Supreme Court's reversal of a client's conviction in Commonwealth v. Berkowitz became a matter of national attention and resulted in a change in state law. The Pennsylvania Superior Court adopted Mr. Mustokoff's argument in Commonwealth v. Fischer and suggested the need for a fundamental change in criminal jury instructions.
• Represented a national law firm when it was sued by a former client for an ethical breach.
• In another case, he successfully represented a federal judge and her mother in personal injury actions against a major hotel chain.
• Following trial, obtained a significant settlement on behalf of a group of investors against a major hotel chain where no offer was made pre-trial.
• Secured the dismissal of federal charges against a Taiwanese national whom the government had declared a fugitive through use of a video teleconference. In another case, obtained reduction of a charge of first degree murder by use of a videotape of the defendant under hypnosis where the defendant had no recollection of the murder. In a third case, engineered the secret videotaping of an extortion attempt leading to his client's acquittal.
• Secured dismissal of charges against a major chemical company scientist accused of theft of trade secrets and trade espionage, January 2009.
• Has conducted a number of internal investigations of publicly held corporations and health care providers in the defense and mitigation of federal claims and penalties.
• Successfully represented a franchisor of convenience stores in a RICO and antitrust claim brought by its franchisees.
• Represented Bayer Corporation in a federal RICO law suit involving claims of theft of trade secrets and fraud.
• Have represented clients in federal investigations of pharmaceutical pricing.
• Currently representing a physician's group in a RICO lawsuit claiming insurance fraud.
• Represents both plaintiffs and defendants in federal Qui Tam litigation.
• Have defended and investigated cases of commercial espionage, matters involving the Foreign Corrupt Practice Act and federal and international antitrust violations.

Professional Activities

• American Bar Association
  - Criminal Justice Section
  - Antitrust Law Section
  - Section of Litigation
• Pennsylvania Bar Association
  - Criminal Law Section
  - Civil Litigation Section
• Philadelphia Bar Association
  - Criminal Justice Section
• American Trial Lawyers Association
• American Health Lawyers Association
• National Association of Criminal Defense Counsel
• Defense Research Institute
• Health Care Financial Management Association
• American Bar Foundation
  - Fellow
• American College of Trial Lawyers
  - Fellow

Admissions

• Pennsylvania
• Supreme Court of the United States
• United States Court of Appeals for the Third Circuit
• United States District Court for the Eastern District of Pennsylvania
• Supreme Court of Pennsylvania

Education

• University of Pennsylvania Law School, J.D., 1972

Experience

• Duane Morris LLP
  - Member, Partners Board, 1996-present
  - Partner, 1984-present
  - Associate, 1980-1984
• District Attorney's Office, Philadelphia, Pennsylvania
  - Assistant District Attorney, 1972-1979
  - Chief, Economic Crime Unit, 1975-1979

Honors and Awards

• Listed in Super Lawyers Corporate Counsel Edition, Criminal Defense: White Collar, September/October 2009
• Named a Super Lawyer by Philadelphia Magazine, 2004-2010
• The Best of H&HN Online for "When Dr. Jekyll Becomes Mr. Hyde," October 2004
• Listed in Who's Who in American Law, 1987-1988
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

AV® Preeminent™ and BV® Distinguished™ are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.

Selected Publications

• Co-author, "The False Claims Act: The Courts Move Toward a Rule of Reason," The Journal of Medical Practice Management, May/June 2005
• Co-author, "Hospitals,Their Physicians, And Their Non-Competes: Breaking Up--Should Be Hard To Do," Health Lawyers News, July 2004
• Co-author, "The False Claims Act and the Recent Trend Toward Kinder, Gentler Interpretations: Standards for Health Care Fraud Prosecution Continue to Evolve," Journal of Health Care Compliance, November-December 2003
• Co-author, "Advice for Taxpayers with Undeclared UBS Swiss Bank Accounts," Massachusetts Lawyers Weekly, December 15, 2008
• Co-author, "The Dangers of Physician Misconduct in the Workplace," The Legal Intelligencer, July 21, 2003
• Co-Author, "One Purpose Test Escapes High Court Review Greber's Conviction Stands," The Legal Intelligencer, July 29, 2002
• Co-Author, "Counsel Interaction with Government Agencies and Fiscal Intermediaries," Health Care Dispute Resolution Manual: Techniques for Avoiding Litigation, December 2001
• Co-Author, "Good Intentions Still Matter: A Health Care Anti-kickback Case Requires a Finding of Specific Intent to Violate the Law," New Jersey Lawyer, August 2001
• Co-Author, "Health Care Providers Do Not Deserve To Be Treated As 'Drug Dealers': An Analysis of the Criminal Intent Standard Under the Anti-kickback Act", The Health Lawyer, June 2001
• Co-Author, "Compliance Matters: An Educational Guide for Physicians and Other Health-Care Practitioners," 2001
• Co-Author, "The Attorney/Client Privilege: A Fond Memory of Things Past, An Analysis of the Privilege Following United States v. Anderson, Annals of Health Law, Volume 9, 2000
• Author, "What Others Might Call a White Collar Criminal Is His Lawyer's Unfortunate Entrepreneur," chapter from Best Practices for White Collar Litigation, Aspatore Books, 2006
• Co-Author, Part I "To Disclose or Not to Disclose - There Should Be No Question," and Part II," An Effective Voluntary Disclosure Program Needs an Amnesty Provision," The Legal Intelligencer, September 18-19, 2000; The Health Lawyer, June 2001
• Co-Author, "Full Amnesty Could Encourage Provider Self-Disclosure," Healthcare Financial Management, July 2000
• Co-Author, "Attorney/Client Privilege After Anderson," and "Hotlines, Voluntary Self-Disclosure and the Death of Privilege After Anderson," The Legal Intelligence, December 23 and 27, 1999.
• Co-Author, "The Justice Department Guidelines on the False Claims Act: Overdue Recognition that Sometimes a Mistake is Just a Mistake," Medicare Compliance Perspectives, December 31, 1998; The Legal Intelligener, January 27, 1999
• Co-Author, "Columbia/HCA Learns Nothing is Sacred," The Legal Intelligencer, September 30, 1998
• Co-Author, "An Officer You Can Comply On," Report On Fraud, July 1998.
• Co-Author, "Internal Compliance Investigations Can Reduce Government Sanctions," Healthcare Financial Management, October 1997; Pittsburgh Legal Journal, April 29, 1998.
• Co-Author, "Columbia/HCA Learns That Nothing is Sacred? The Government's Use of Cost Reports in Criminal Prosecutions," Fourth Annual Health Law Institute, Vol. II, April 1998.
• Co-Author, "Fraud and Abuse Update: Even Paranoids Have Enemies," The Journal, New Jersey Association of Osteopathic Physicians and Surgeons, March 1998.
• Co-Author, "The Government's Use of the Civil False Claims Act to Enforce Standards of Quality of Care--Ingenuity or the Heavy Hand of the 800 Pound Gorilla," Annals of Health Law, Loyola University Chicago School of Law, Vol. 6, June 1997.
• Co-Author, "Health Care Fraud and Abuse: The Government's Most Wanted List," The Legal Intelligencer, September 18, 1996; Pittsburgh Legal Journal, August 29, 1996; Health Systems Review, July/August 1996; Andrews Health Care Fraud Litigation Reporter, August 1996
• Co-Author, "Minimizing the Risks of Independent Contractor Status in the Health Care Industry," Journal of Taxation of Exempt Organizations, July/August, 1996.
• "Erroneous Hospital Bills Not Always False Claims," The Legal Intelligencer, October 18, 1995
• Author, "How to Prevent an Erroneous Hospital Bill from Becoming a Federal Case," Pittsburgh Legal Journal, Wednesday, July 12, 1995
• Co-Author, "Prosecutors Focus on Environmental Crimes," Water Environment and Technology, October, 1994
• Co-Author, "Accusations of Fraud - How a Nursing Home Can Protect Itself," Duane Morris/Coopers & Lybrand Advisory, August 1994
• Co-Author, "Recent Developments Regarding False Claims Filed by Hospitals," Duane Morris/Coopers & Lybrand Advisory, February 1994
• "No Case is Too Small-Expanding Corporate Criminal Liability," For The Defense, February, 1994
• Author, "Hazardous Waste Violations: A Guide to Their Detection Investigation and Prosecution," U.S. Department of Justice, LEAA, February 1981
• Author, "The Use of Search Warrants in the Investigation of White Collar Crime," U.S. Department of Justice, LEAA, February 1981
• Contributing Editor, Insurance Fraud Manual, National District Attorneys' Association, 1979

Selected Speaking Engagements

• "Instant Impact: The $520 Million Fine on AstraZeneca - What Pharmaceutical Companies Need to Know About Their Own Exposure & Proactive Steps They Should Immediately Be Taking," ExecSense Webinars, May 5, 2010
• "Changes to the False Claims Act: The Impact of FERA on Health Care Organizations," Hospital & Healthsystem Association of Pennsylvania audio conference, December 18, 2009
• "A Qui Tam Perspective," National Pharma Audioconference: Lessons of Eli Lilly's $1.4 Billion Off Label Zyprexa Settlement, March 24, 2009
• "How to Prevent Your RAC Audit Findings from Becoming the Subject of a False Claims Act Prosecution," 15th Annual Health Law Institute, Philadelphia, March 12-13, 2009
• "What's Right; What's Wrong - Ethical Dilemmas in the Investigation of Healthcare Providers," Pennsylvania Bar Institute, Philadelphia, October 28, 2008
• "How to Conduct an Effective Internal Investigation of Healthcare Providers," Fraud and Compliance Forum, Baltimore, October 6, 2008
• "Minimizing Damages and Penalties with State False Claims," American Conference Institute's State False Claims Summit for Pharmaceutical & Life Sciences Companies and Healthcare Providers, New York City, May 23-24, 2007
• Speaker, "False Claims and Billing Errors: What is the Difference? And – What is a Lawyer to Do?" workshop, 13th Annual Health Law Institute conference, hosted by the Pennsylvania Bar Institute, Philadelphia, Pennsylvania, March 14, 2007
• "Recommendations for Dealing with the Government's Enforcement Agenda," The Health Care Compliance Association's Research Compliance Conference, Las Vegas, Nevada, September 17-19, 2006
• Speaker, "Working with Disruptive Physicians in the Hospital Environment," Health Care Compliance Association's 2005 Compliance Institute, April 2005.
• "Working With Disruptive Physicians," The Risk Management and Patient Safety Institute, October 2004
• "Hospital Uninsured Litigation," Presentation to HFMA Appalachian Chapter of Central Pennsylvania, Harrisburg, Pennsylvania, September 2004
• "Physicians Off the Reservation -- Physicians and Restrictive Covenants," Pennsylvania Bar Institute's Health Law Institute, March 2004
• "Health Care Fraud and Abuse," Health Law Fundamentals, Pennsylvania Bar Institute program, Philadelphia, Pennsylvania, August 20, 2003
• "State Enforcement and Medicaid Fraud" and "Ethics in Fraud and Abuse Counseling," 13th Annual National Institute on Health Care Fraud, Las Vegas, Nevada, May 14-16, 2003
• "Federal Enforcement - Kindler, Gentler?" 9th Annual Health Law Institute, sponsored by the Pennsylvania Bar Institute, Philadelphia, Pennsylvania, March 12-13, 2003
• "Counsel Interaction with Government Agencies and Fiscal Intermediaries," 8th Annual Health Law Institute, Philadelphia, Pennsylvania, March 12-13, 2002
• "Government Issues," Medical Group Management Association, San Antonio, Texas, October 21, 2001
• "How to Effectively Negotiate Physician Contracts - Finding Cost Savings," Telephone Seminar, Delaware Valley Healthcare Council of The Hospital and Healthsystem Association of Pennsylvania, March 22, 2001
• "Fraud and Abuse Compliance: Staying Out of Trouble," Teleconference, sponsored by Pennsylvania Medical Society and RiskCare, February 21, 2001
• "Living and Operating Under Corporate Integrity Agreements," Greater Philadelphia Healthcare Financial Management Association - Legislative and Tax Update meeting, Philadelphia, Pennsylvania, November 14, 2000
• "Voluntary Disclosures," Corporate Compliance/Internal Audit Committee of the New Jersey Chapter of HFMA, Princeton, New Jersey, October 26, 2000
• "Corporate Compliance: Critical in Today's Regulatory Environment," video-conference seminar, Philadelphia, Pennsylvania and Miami, Florida, October 25, 2000
• "Attorney Client Privilege: Basics of the Law," Health Care Compliance Association's 2000 Compliance Institute, New Orleans, Louisiana, September 24-27, 2000
• "Attorney-Client Privilege and Representation Issues," Northeast Pennsylvania Chapter of Healthcare Financial Management Association, Wilkes-Barre, Pennsylvania, March 31, 2000
• "United States v. Anderson, A Tragedy in Three Acts," Pennsylvania Bar Institute, Philadelphia, Pennsylvania, March 16, 2000
• "Health Care Fraud and Abuse: Paranoia or Risk? Are You a Target?" The Graham Company, Haddonfield, New Jersey, October 26, 1999
• "PATH Audit in an Emergency Department," Association of Healthcare Internal Auditors 1999 Annual Conference, San Diego, California, September 26, 1999
• "What Does Attorney/Client Privilege Really Mean?" Healthcare Financial Management Association, 1999 Corporate Compliance Conference, Washington, D.C., August 27-28, 1999
• "A Review of Compliance, Disclosure and Government Initiatives From the Perspective of the Government and Private Counsel," Healthcare Financial Management Association, Wilkes-Barre, Pennsylvania, May 21, 1999
• "Appellate Advocacy: Views from the Pennsylvania Superior Court Bench," Annual Meeting - Pennsylvania Bar Association Appellate Advocacy, Philadelphia, Pennsylvania, May 5, 1999
• "Compliance Issues, Implications of Errors, and the Role of the Board in an Effective Compliance Program," The Hospital & Healthsystem Association of Pennsylvania 1999 Leadership Summit, Harrisburg, Pennsylvania, April 12, 1999
• "The Justice Department Guidelines on the False Claims Act: Sometimes a Mistake is Just a Mistake," Pennsylvania Bar Institute's Fifth Annual Health Law Institute, Philadelphia, Pennsylvania, March 19, 1999
• "Cost Reports - Two Sets of Books or Standard Accounting Practice?," Pennsylvania Bar Institute, Philadelphia, Pennsylvania, April 2, 1998
• "How to Keep Billing Errors from Becoming a Federal Case," National Healthcare Financial Management Association, Boston, Massachusetts, March 31, 1998
• "The Government's Healthcare Fraud and Abuse Initiatives," Atlantic Region Osteopathic Convention, Atlantic City, New Jersey, March 25, 1998
• "Stark II Proposed Rules: Issues for Health Care Systems and Physicians," Duane, Morris & Heckscher LLP, The Hospital & Healthsystem Association of Pennsylvania and ZA Consulting, LLC, Philadelphia, Pennsylvania, March 19, 1998; Grantville, Pennsylvania, March 26, 1998; Pittsburgh, Pennsylvania, April 28, 1998; Princeton, New Jersey, May 12, 1998
• "Bases of Health Care Regulatory Compliance," Larson-Allen, Minneapolis, Minnesota, January 23, 1998
• "Columbia/HCA Investigation Analysis," Lessons From Columbia, Pennsylvania Society of Health Care Attorneys and the Pennsylvania Bar Institute, Harrisburg, Pennsylvania, November 7, 1997
• "Corporate Compliance Programs for Healthcare Organizations," Hospital Association of Pennsylvania, Pittsburgh, Pennsylvania, September 18, 1997; Harrisburg, Pennsylvania, September 17, 1997; King of Prussia, Pennsylvania, September 16, 1997
• "Corporate Compliance and the Healthcare Financial Manager's Role," Healthcare Financial Management Association Conference, Seven Springs, Pennsylvania, September 12 and 13, 1997
• "Compliance Programs," Pennsylvania Bar Institute's Third Annual Health Law Institute, Philadelphia, Pennsylvania, April 10 and 11, 1997
• "Corporate Compliance--The Health Care Organization's Operation Mandate," Kansas Hospital Association and Greater Kansas City Health Council, Wichita, Kansas, October 23, 1996; Kansas City, Missouri, October 24, 1996
• "The Government's Use of the Civil False Claims Act to Enforce Standards of Quality of Care--Ingenuity or the Heavy Hand of the 800 Pound Gorilla," National Health Lawyers Association, Arlington, Virginia, October 1996
• "Health Care Fraud Compliance Planning--OIG Audit Seminar," The Hospital Association of Pennsylvania Education Services, Pittsburgh and King of Prussia, Pennsylvania, August 1996
• "Malpractice in the Litigation Support Environment," mock trial sponsored by the Pennsylvania Institute of Certified Public Accountants Greater Philadelphia Chapter's Committee on Cooperation with the Bar and the Philadelphia Bar Association, Philadelphia, Pennsylvania, May 1996
• "How to Stop an Erroneous Hospital Bill from becoming a Federal Case," Healthcare Financial Management Association's Doing It Right And Doing It Well, A Review of Current Legislative Issues, Lombard, Illinois, April 1996
• "Medicare Billing: Settling with the Department of Justice--Pay, Fight or...," Healthcare Financial Management Association's Rapid Response Programs, Fall 1995
• "What Do You Do When the F.B.I. Knocks on Your Door: A Practical Discussion of the Various Alternatives Available and the Pros and Cons of Each," Defense Research Institute Seminar on Corporate, Criminal & Tort Liability: The Expanding Criminalization of Business Conduct, February 1994 and December 1992
• "Your Rights and Obligations When Confronted by Government Investigators," Continuing Legal Education International Seminar, Philadelphia, Pennsylvania, September 1992
• "Reducing Liability in Litigation," Hospital Association of Pennsylvania, Hershey, Pennsylvania, October 1985
• "Criminal Prosecution of Violators of Federal Environmental Laws - Who is at Risk?" Defense Research Institute, Inc., New Orleans, March 1992
• "Exposure to Criminal Prosecution Under the Hazardous Waste Statutes," Defense Research Institute, Defense Practice Seminar, Baltimore, Maryland, March 1989
• "Defense Perspectives in Representing Health Care Professionals," National Association of Medicaid Fraud Control Units, Annapolis, Maryland, October 1988
• "Fire Loss Prevention," Harleysville Claims and Underwriting Staff, Harleysville, Pennsylvania, October 1988
• "The Use of Civil RICO by Insurers," Defense Research Institute, Commercial Law Seminar, New York, December 1987; Scottsdale, Arizona, 1988
• "Criminal Proceedings by Federal and State Authorities in Toxic Release and Hazardous Waste Cases," Defense Research Institute, Inc., San Francisco, California, December 1985; San Diego, California, March 1988
• "Criminal Defense of Hazardous Waste Prosecution," Defense Research Institute, Inc., New Jersey, March 1987
• "The Defendants Perspective: The Double Whammy of Civil and Criminal Liability," Environmental Hazards Management Institute, Atlantic City, New Jersey, June 1986
• "Considerations in the Criminal Defense of Health Care Providers," Pennsylvania Bar Institute, Philadelphia, Pennsylvania, January 1986