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Negotiation Pointers from an FBI Negotiator

Posted: June 22nd, 2016

It can’t hurt to hear what a former FBI negotiator has to say about negotiation strategy.

Chris Voss, former lead international kidnapping negotiator for the FBI, shares his most effective tips on how to become more persuasive in his new book, Never Split the Difference: Negotiating As If Your Life Depended On It (HarperBusiness, 2016). Business Insider recently posted an insightful article by blogger and Wired writer Eric Barker culling seven of the best tips from Voss’s book. As Barker explains, Never Split the Difference dismisses traditional negotiating tactics such as being abrupt and making your opponent feel that you have the upper hand. Instead, Voss advocates focusing on emotions – conveying empathy, listening to the other side, and building trust. I strive to use the same approach in my negotiations, and empathy and listening have gotten me much better results than threatening and bluffing ever have.

Read Barker’s full article below and visit his blog. You can also order the book on Amazon or from Barnes & Noble.

7 Tips from a Hostage Negotiator That Will Help You Be More Persuasive
By Eric Barker
May 24, 2016
Business Insider
http://www.businessinsider.com/7-tips-from-a-hostage-negotiator-that-will-help-you-be-more-persuasive-2016-5

We all have to have difficult conversations. And they’d be easier if you knew how to be persuasive. Whether it’s dealing with family members, buying a car or negotiating a raise, persuasion is always a useful skill.

But much of what you read doesn’t work in tough scenarios. So I decided to call someone who has handled the most challenging scenarios imaginable — ones where lives are on the line …

Chris Voss was the FBI’s lead international hostage negotiator and he’s the author of an excellent new book: Never Split The Difference.

Think you know what really influences people? Maybe you’ve read some stuff on the subject before?

Well, you’re probably making a lot of mistakes. Chris has some of the most counterintuitive — and effective — techniques you’ve never heard about.

Chris focuses on emotions. And this completely changes the game. His methods get people to solve your problems for you — in ways that will make both sides happy.

Let’s get to it …

Don’t be direct

Straightforward and honest are good qualities. But when you’re too direct in a negotiation or heated discussion, it can come off as blunt and rude. You sound like you don’t care about the other side and just want what you want.

Skipping listening, empathy, and rapport is what turns an easily resolved dilemma into a fight. And you never want to turn a discussion into a war. Be nice and slow it down. Here’s Chris:

Don’t think, “I’m a very direct and honest person. I want people to be direct and honest with me, so I’m going to be direct and honest with you.” Well, that happens to come across as being very blunt and overly aggressive. If I’m not aware that my direct and honest approach is actually offensive to you, then I’ll be mystified as to what your problem is. Meanwhile, dealing with me might feel like getting hit in the face with a brick.

“Cutting to the chase” can feel like an attack. So slow down. Smile. Use a friendly tone or a calm voice.
So what do many negotiation books tell you to do that is totally wrong?

Don’t try to get them to say “yes”

You hear a lot of advice telling you that getting people to say “yes” multiple times will make them more likely to say “yes” to whatever you want. Chris feels this may have been a good idea in the past, but people are on to it.

You’ve probably had people try it on you. And you knew what they were doing. And how did it make you feel? Exactly. Icky and manipulated. Trust and rapport just went out the window.

People are reluctant to say “yes” because it makes them commit to something. It makes them defensive.

Here’s Chris:

When people say “no,” they feel they’ve protected themselves. “No” is protection. “Yes” is commitment. People worry about what have I just committed to by saying yes. But when you say “no,” you don’t commit to anything. Since you just protected yourself, you have a tendency to relax. People actually become a lot more open if they feel they’ve protected themselves.

So what does Chris recommend? Phrase the exact same questions in a way to get them to say “no.” Here’s Chris:

People will do things that aren’t in their best interest, just to prove to you that they have autonomy. If you make it clear to them that it’s okay to say “no,” then you help them feel autonomous which makes them more collaborative. You call somebody up on the phone and say, “Have you got a few minutes to talk?” That will make anybody tighten up. Immediately they want to say “no” to that, because they know if they say “yes,” they’re going to get hooked in and be kept on the phone. The opposite is to say, “Is now a bad time to talk?”

Chris prefers to use phrasing such as, “Would it be a bad idea if…?” People don’t feel locked in, and they’ll often affirm what you’re proposing by saying something like, “No, that’s not a problem.”

There’s a very powerful way to implement this when you’re trying to resolve a situation and you’re being ignored. What does Chris say works magic? Just ask one simple question designed to trigger a “no.”

From Never Split The Difference:

Have you given up on this project?

More often than not the response is a fast, “No, we’ve just been really busy. Sorry about the delay…”

So you’re no longer being blunt and you’re not trying to trick people into saying “yes.” Great. What other mistakes are you probably making?

You need to do an “accusation audit”

If it’s an argument with a loved one or a business negotiation that’s headed south, the other side probably has made some accusations about you. “You don’t listen” or “You’re being unfair.”

And the common response is to start your reply with “I’m not ____.” You deny their feelings. Boom — you just lost the patient, doctor. They now assume you’re not on the same page. That they can’t trust you.

So what does Chris say to do instead? List every terrible thing they could say about you.

From Never Split The Difference:

The fastest and most effective means of establishing a quick working relationship is to acknowledge the negative and defuse it.

Don’t be afraid of sounding weak or apologizing. Unless you’re holding all the cards, making them feel you’re on the same page produces more concessions in the long run than making them feel you don’t care or understand. Here’s Chris:

Denying an accusation enhances the accusation. Saying, “I don’t want it to seem like I don’t care about you,” is denying a negative and that’s a poor tactical choice. Say, “I know it seems like I don’t care about you.” That defuses the negative.

So you’re doing a lot of things that on the surface might sound crazy: trying to get them to say “no,” acknowledging all their accusations about you … What completely insane-sounding thing does Chris also recommend?

Let them feel in control

Many negotiation books use fighting metaphors and emphasize dominance. Bad idea, says Chris. Cool your inner Rambo.

You want a collaborative atmosphere. And if you’re both jockeying for control, forget about it. When some people don’t feel in control they totally lose it, especially in heated situations. So let them feel in control.

You’re not giving them everything they want or letting yourself get pushed around, but the other side has to feel they have control in order to relax. Here’s Chris:

Say, “Okay, you want to set the agenda? Set the agenda.” Ask them open-ended questions. People love to be asked open-ended questions that start with “what” or “how,” because it let’s them feel like they’re educating you and it gives them a feeling of being in control. It works on two levels. One, it tends to create a more collaborative environment, which means you’re going to make a better deal. And, two, if the other side is trying to gain control to cheat you, it lets them drop their guard, so that you can get the upper hand.

Playing dumb is an effective strategy. Keep asking those “how” or “what” questions.

So you let them feel in control and you’re asking a lot of open-ended questions. But how do you know if all this is working? Listen for two magic words …

The two magic words they need to say

“That’s right.” When they say that, you know they feel you understand them. That’s rapport. Now emotions are on your side. Now you’re collaborators trying to solve a problem, not warring tribes. Here’s Chris:

That’s a really powerful connection to be able to establish. They’re telling you they feel connected to you, and they feel a great rapport with you. If there’s anything that’s going to move them in your direction swiftly it’s when they say, “That’s right.”

What conversational move is most likely to trigger a “That’s right”?

A summary. Paraphrase back to them what they’ve been saying. Now they know you’re listening and understanding. You don’t have to agree, you’re just giving a summary.

And what words should make you worried? If they say, “You’re right.” Think about it. When do you say that? When you want to politely tell people to shut up and go away.

Alright, so we’ve focused a lot on emotions and getting them on your side. Now how do we actually make progress in the discussion or negotiation? Well, all that listening wasn’t just about making them feel good. It’s also to get information …

Listen for levers

Sometimes you feel you have no leverage. But Chris believes there is always leverage. You just have to find it. And you do that by listening and asking questions — which nicely builds rapport and makes your counterpart feel in control at the same time.

Negotiation is not a fight. It’s a process of discovery. When you know their real needs, the real reasons they are resisting you, then you’re able to address those directly and problem-solve. Here’s Chris:

The other side has got something to tell you that would change everything. You’ve gotta get that piece of information out of them. Give them a chance to talk, and they’re going to tell you something really important … Let’s say their boss told them two days before that if they don’t close the next deal, their job is on the line. Maybe there’s a company that appears to have all the leverage in the world, but there’s a personal pressure on the executive that you don’t know about, like they need to close this before they leave on vacation. You’re really looking for two things. The stuff they’re intentionally holding back, and then the stuff that they just don’t know is important and they’re not going to mention if you don’t keep them talking.

I saw a good example of this first hand in an MIT negotiation class. Two groups of students have to decide how to split a bunch of oranges. Both sides have detailed information about their needs that the other group can’t see.

The aggressive students rush in and say, “You have to give us all the oranges.” These students get an F. (They probably also go on to get divorced.)

The collaborative students say, “We’ll split the oranges 50/50 with you.” Better, but far far far from optimal.

What do the smart students do? They ask questions. And what they find out is that the other group only needs the orange peels. And their group only needs the fruit. Both sides can get everything they want.

But they never find out if they don’t ask.

There’s always leverage. But you have to listen.

So asking questions is a huge part of getting what you want out of any disagreement. What’s the question that you should be asking the most?

“How am I supposed to do that?”

Playing dumb works. In fact, being helpless works too. Asking “How am I supposed to do that?” is deceptively powerful.

It gets them to solve your problems for you and in a way they deem acceptable.

From Never Split The Difference:

Calibrated “How” questions are a surefire way to keep negotiations going. They put pressure on your counterpart to come up with answers, and to contemplate your problems when making their demands… The trick to “How” questions is that, correctly used, they are gentle and graceful ways to say “No” and guide your counterpart to develop a better solution — your solution.

By getting the other side to think about your situation it very often gets them to grant concessions. And they’re concessions that they’re okay with and will likely stick to because it was their idea to offer them. Here’s Chris:

You want to make the other side take an honest look at your situation. It’s the first way of saying “no” where you’re doing a lot of things simultaneously. You’re making the other side take a look at you. You make them feel in control, because it’s a good “how” question. You don’t want to say it as an accusation. You want to say it deferentially, because there’s great power in deference. You want to find out if they’re going to collaborate with you. 9 times out of 10, you get a response that’s really very good.

Keep asking it. In hostage negotiations Chris would ask it over and over: “How do we know the hostage is safe?” “We don’t have that kind of money. How are we supposed to get it?” “But how do we deliver the ransom to you?”

Now I know what some of you are thinking… Eventually they’re going to say, “You’re just going to have to figure it out.” And that’s fine. That’s the signal you haven’t “left any money on the table.” Here’s Chris:

Of course the one time out of 10 they’ll say to you, “Well, you’re just going to have to figure it out.” But even in that case “How am I supposed to do that?” helps you confirm that you have in fact pulled as much value or gotten as many options as you possibly can out of the other side. You found a solid barrier. Your decision now is, “Okay, do I like this? Do I move in another direction?”

Okay, we’ve learned a lot from Chris. Let’s round it all up and learn the final secret to how paying attention to emotions can help you resolve dilemmas at home and at the office…

Sum up

Here’s what Chris had to say about how to be persuasive:

Don’t be direct:Direct usually comes off as rude, no matter your intentions. Be nice and slow it down.
Don’t try to get them to say “yes”:Pushing for a “yes” makes people defensive. Try to get a “no.”
Do an “accusation audit”:Acknowledge all the negative things they think about you to defuse them.
Let them feel in control:People want autonomy. Ask questions and let them feel like they’re in charge.
The two magic words they need to say:Summarize their position to trigger a “That’s right.”
Listen for levers:They might only need the orange peel. Listen, listen, listen.
Keep asking “How am I supposed to do that?”: Let them solve your problems for you.

Emotions are critical. Most deals end because of negative feelings and most deals close because people like one another. So don’t alienate the other side — unless you are trying to kill the deal. (And that’s an effective technique as well.)

But what you really want to do is what that magic phrase “How am I supposed to do that?” accomplishes so well. It allows you to say “no” without making an enemy. Chris sums it up nicely in his book with a quote.

From Never Split The Difference:

“He who learns to disagree without being disagreeable has discovered the most valuable secret of negotiation.”

Discussions and negotiations aren’t about war or winning. It’s about finding a way for everyone to get what they want and to be happy with what they get. For the people closest to us, it’s also about understanding them better through listening.

And that’s what builds relationships that last.

Overthinking Overpayments from Medicare

Posted: June 15th, 2016

Published In: The Nassau Lawyer

Tags: healthcare

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Since passage of the Affordable Care Act, compliance officers and attorneys have struggled to comply with the new rule requiring notification and repayment of Medicare overpayments within 60 days.[i] The two large questions that remain unclear are what constitutes an “overpayment,” as well as what it means to “identify” an overpayment.

Section 6402(a) of the Affordable Care Act (“ACA”) created a new section 1128J(d)(1) of the Social Security Act (the “Act”), which addresses overpayments. Section 1128J(d)(2) requires an overpayment to be reported and returned “by the later of (A) the date which is 60 days after the date on which the overpayment was identified; or (B) the date any corresponding cost report is due, if applicable.”

The questions surrounding “overpayment” and “identify” remain crucial because failure to comply gives rise to Federal False Claims Act liability. Section 1128J(d)(3) of the Act directs that any overpayment retained by a person past the 60-day deadline constitutes an obligation under the Federal False Claims Act for purposes of 31 U.S.C. § 3729. Liability under the False Claims Act subjects one to a civil penalty of between $5,000 and $10,000 for each false claim and treble the amount of the government’s damages.

Retention of overpayments beyond the 60-day deadline in the Act has been classified as “reverse false claims” in litigation. The first major litigation addressing the 60-day overpayment reporting deadline in a reverse false claims case was Kane ex rel. U.S. v. Healthfirst.[ii]

In Kane, a software glitch caused three New York City hospitals to submit improper claims to Medicaid in 2009 as a secondary payer for patients for whom they had already received payment through Medicaid managed care. In September 2010, auditors from the New York State Comptroller’s Office notified the defendants of the incorrect billing. The defendants refunded these initial incorrect claims and assigned the Relator,[iii] Mr. Kane, to investigate the extent of overbilling due to the software glitch.

On February 4, 2011, five months after the Comptroller notified the defendants of the improper claims, Mr. Kane notified the defendants’ management that approximately 900 claims totaling over $1 million were improperly billed due to the glitch. On February 8, 2011, Kane was terminated. Kane subsequently became a Relator and filed a False Claims Act action, which the government joined. The complaint alleged that the defendants began repaying the overpayments in April 2011 and “fraudulently delayed” repayments until March 2013. In support of its claim, the government alleged that the defendants reimbursed the government for only approximately 300 improper claims after receiving a Civil Investigative Demand (“CID”) in June 2012.

The court denied the defendants’ motion to dismiss the complaint, holding that the facts in the case clearly showed requisite “knowledge” of the overpayments and a deliberate attempt to avoid the 60-day repayment obligation. However, the court highlighted that “identified” as used in the Act was undefined, and may differ from the term “known” as used in the False Claims Act.

Fast forward to February 12, 2016, where the Center for Medicare and Medicaid Services (“CMS”) issued a final rule to its February 16, 2012 Proposed Rule on the Reporting and Returning of Overpayments.[iv] The Final Rule, published February 12, is entitled “Medicare Program; Reporting and Returning of Overpayments” (“Overpayment Rule”).[v] The regulations promulgated in the Overpayment Rule became effective March 14, 2016.

The Overpayment Rule defines “identification” and provides a lookback period in which to identify overpayments, as well as a procedure for reporting and returning the overpayments.

42 C.F.R. § 401.303 defines “overpayments” as “[a]ny funds that a person has received or retained under title XVIII of the Act to which the person, after applicable reconciliation is not entitled under such title.”

The commentary offers examples of overpayments as:

Medicare payments for noncovered services.
Medicare payments in excess of the allowable amount for an identified covered service.
Errors and nonreimbursable expenditures in cost reports.
Duplicate payments.
Receipt of Medicare payment when another payor had the primary responsibility for payment.[vi]

Once overpayments are identified, the Overpayment Rule mandates a six-year lookback from the date the person identifies the overpayment.[vii] However, providers should note that False Claims Act liability could still extend to 10 years in some cases. CMS suggests that this disparity be reconciled in future clarifications.

Final Rule 42 C.F.R.§ 401.305 defines “identified” as:

A person has identified an overpayment when the person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment. A person should have determined that the person received an overpayment and quantified the amount of the overpayment if the person fails to exercise reasonable diligence and the person in fact received an overpayment.

To help define “reasonable diligence,” the commentary offers some examples of when an overpayment has been “identified”:

A provider of services or supplier reviews billing or payment records and learns that it incorrectly coded certain services, resulting in increased reimbursement.
A provider of services or supplier learns that a patient death occurred prior to the service date on a claim that has been submitted for payment.
A provider of services or supplier learns that services were provided by an unlicensed or excluded individual on its behalf.
A provider of services or supplier performs an internal audit and discovers that overpayments exist.
A provider of services or supplier is informed by a government agency of an audit that discovered a potential overpayment, and the provider or supplier fails to make a reasonable inquiry. (When a government agency informs a provider or supplier of a potential overpayment, the provider or supplier has a duty to accept the finding or make a reasonable inquiry. If the provider’s or supplier’s inquiry verifies the audit results, then it has identified an overpayment and, assuming there is no applicable cost report, has 60 days to report and return the overpayment. As noted previously, failure to make a reasonable inquiry, including failure to conduct such inquiry with all deliberate speed after obtaining the information, could result in the provider or supplier knowingly retaining an overpayment because it acted in reckless disregard or deliberate ignorance of whether it received such an overpayment).
A provider of services or supplier experiences a significant increase in Medicare revenue and there is no apparent reason—such as a new partner added to a group practice or a new focus on a particular area of medicine—for the increase. However, the provider or supplier fails to make a reasonable inquiry into whether an overpayment exists. (When there is reason to suspect an overpayment, but a provider or supplier fails to make a reasonable inquiry into whether an overpayment exists, it may be found to have acted in reckless disregard or deliberate ignorance of any overpayment.)[viii]

Once a provider has identified overpayments, the Overpayment Rule remains a work in progress. It cites 13 identified criteria from the 2012 proposed rule that must be incorporated into overpayment reports, but then it declines to adopt them, instead directing the provider to ascertain the best recipient and mechanism for reporting the overpayment. The commentary notes that Publication 100-08, Chapter 4, Section 4.16 of the Medicare Program Integrity Manual requires Medicare contractors to process all voluntary refunds,[ix] so providers may seek to issue a refund there first. For other instances, the commentary dictates that the CMS Voluntary Self-Disclosure Protocol (SDRP) and OIG’s Self-Disclosure Protocol (SDP) shall also remain acceptable methods,[x] with their own protocols by which to report overpayments and process refunds. If the person calculates the overpayment using a statistical sampling methodology, the person must describe the methodology in the disclosure report.[xi]

While the Overpayment Rule’s impact in False Claims Act litigation remains untested, it provides helpful guidance for Medicare providers and their compliance officers and attorneys to ferret out overpayments and identify responsibilities to report. Healthcare providers are urged to implement (or review existing) policies to identify, report, and refund overpayments with the guidance of experienced healthcare counsel.

[i] The Centers for Medicare & Medicaid Services (CMS) “60-day rule” requires Medicare Parts A and B providers and suppliers to report and return overpayments by the later of either (a) 60 days after the date an overpayment was identified, or (b) the due date of any corresponding cost report (which is used to report expenses for various types of Medicare reimbursable facilities).

[ii] 120 F.Supp.3d 370 (S.D.N.Y. 2015).

[iii] Under the False Claims Act, in Medicare and other governmental investigations, a “relator”—an individual not affiliated with the government—is authorized to file actions on behalf of the government, in this case to assist with the investigation and recovery of overpayments by Medicare.

[iv] 77 Fed. Reg. 9179 (Feb. 16, 2012).

[v] 81 Fed. Reg. 7654 (Feb. 12, 2016).

[vi] Id. at 7656.

[vii] 42 C.F.R. § 401.305(f).

[viii] 81 Fed. Reg. at 7659.

[ix] Id. at 7675.

[x] 42 C.F.R. § 401.305(d)(2).

[xi] 42 C.F.R. § 401.305(d)(1).

Microsoft v. Baker: Federal Appellate Courts’ Jurisdiction to Review Orders Denying Class Certification

Posted: June 13th, 2016

Published In: The Suffolk Lawyer

Tags: Supreme Court

In the October 2016 term, the U.S. Supreme Court will hear arguments in Microsoft Corp. v. Baker, et al. on appeal from the U.S. Court of Appeals for the Ninth Circuit. The question presented—whether a court of appeals has jurisdiction to review an order denying class certification after the plaintiffs voluntarily dismiss their claim—is an interesting one for federal practitioners with an interest in the procedural tactics of class-action litigation.

In Baker, owners of the Xbox 360 video game console filed five actions claiming the consoles scratched video game discs. Plaintiffs brought claims for breach of warranty and violation of state consumer protection statutes. After lengthy discovery, the district court denied class certification, finding that the individual particularities regarding causation and damages prevented certification. After the Ninth Circuit denied a petition for review, the parties settled on individual terms and the case was dismissed. The same lawyers later brought similar cases on behalf of new plaintiffs claiming that the law on class certification had changed. The district court granted Microsoft’s motion to strike the class allegations based on the still-sound reasoning of the earlier district court decision.

This time, however, after the Ninth Circuit again denied plaintiffs’ petition for review, plaintiffs voluntarily dismissed their claims with prejudice and filed a notice of appeal from the dismissal, instead of prosecuting their individual claims to judgment. The Ninth Circuit held that it had jurisdiction over the appeal from the voluntarily dismissal and overturned the district court’s class certification decision.

As with nearly every Supreme Court case, the implications of Baker extend far beyond the facts of the particular case. To date, six amici curiae briefs have been filed in support of Microsoft. The “friends of the court” are diverse and include, for instance, the U.S. Chamber of Commerce, the Pacific Legal Foundation, and a number of noted civil procedure scholars. According to the Chamber of Commerce, the Ninth Circuit’s ruling gives plaintiffs an unequal advantage in seeking immediate appellate review of class certification decisions. The Pacific Legal Foundation also emphasizes plaintiffs’ “litigation gamesmanship.” And the civil procedure scholars emphasize that the Ninth Circuit’s ruling undermines the history and purpose of Fed. R. Civ. P. 23(f), which grants appellate courts discretion to grant review of an order denying class certification.

The overarching theme of Petitioner and its amici is that Respondents found a tactical loophole under outlying Ninth Circuit law to get another bite at the class certification apple. Given the hurdles to federal class-action certification and the shift in leverage and settlement dynamics after class certification is granted, the question presented in Baker is a serious one. Other circuits have taken a different view from the Ninth Circuit. According to Microsoft’s petition for certiorari, five circuits have held that a court of appeals lacks jurisdiction to review a denial of a class certification where plaintiffs have voluntarily dismissed their claims with prejudice. For instance, in Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 245-47 (3d Cir. 2013), the Third Circuit equated the Baker plaintiffs’ tactics to “manufactured finality” and noted that such “procedural sleight-of-hand” does not confer appellate jurisdiction.

Although the case may appear postured as a plaintiff-versus-defense-bar issue, it is not necessarily going to render a split decision along ideological lines. Although the future composition of the Supreme Court is currently uncertain, Petitioner has argued that the Ninth Circuit’s ruling is a backdoor attempt to revive the “death knell” doctrine that the Supreme Court rejected in 1978 in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). The Livesay opinion held that a district court’s determination regarding class certification is a final decision within the meaning of 28 U.S.C. § 1291. It is worth noting that Justice Stevens wrote the Livesay opinion on behalf of a unanimous Court.

While some may ultimately relegate the Baker opinion to the annals of 1L Civil Procedure exams, those who litigate and defend federal class action cases should stay tuned.

Court of Appeals Ponders “Extreme and Outrageous” Conduct

Posted: June 13th, 2016

Published In: The Suffolk Lawyer

Patrick McCormick Appeals article

By Patrick McCormick

If it isn’t extreme and outrageous to film a trauma patient’s last minutes alive, the pronouncement of his death, and the family notification, then broadcast those intimate moments on national television in the name of entertainment, all without consent – then what is?

A recent decision from the New York State Court of Appeals leaves the legal community—and the family of that trauma patient—asking that very question.

In April 2011, Mark Chanko, 83, was struck by a sanitation truck as he crossed York Avenue to buy milk at a local deli. He was still conscious and able to speak when he arrived at the emergency room of New York-Presbyterian Hospital/Weill Cornell Medical Center, but died within an hour. Chief Surgery Resident Sebastian Schubl pronounced Mr. Chanko dead and notified his devastated family.

Unbeknownst to the Chankos, ABC News employees filming a medical documentary series, “NY Med,” had recorded Mr. Chanko’s treatment in the ER—including deeply personal moments such as moans of pain, asking if his wife knew what happened, and his actual death—as well as the family receiving the shattering news.

One evening over a year later, Mr. Chanko’s wife, Anita, turned on an episode of “NY Med.” She recognized Dr. Schubl, then suddenly heard her husband’s voice. The image was blurred and no name was used, but there was no doubt that she was witnessing her husband’s final moments. Eventually she heard someone say, “Are you ready to pronounce him?”

Shocked by the fact that the worst night of their lives was televised to millions of people across the country without their knowledge, Mr. Chanko’s family filed complaints with the New York State Department of Health, the hospital, a hospital accrediting group, and the United States Department of Health and Human Services. New York State eventually cited the hospital for violating Mr. Chanko’s privacy, and the family decided to commence a lawsuit against ABC, the hospital, and Dr. Schubl, among others.

The Supreme Court ultimately dismissed all but the causes of action for breach of physician-patient confidentiality against the hospital and Dr. Schubl and intentional infliction of emotional distress against those defendants and ABC. The defendants appealed, and the Appellate Division dismissed the complaint in its entirety. Chanko v. American Broadcasting Cos. Inc., 122 A.D.3d 487 (1^st Dep’t 2014). The Chankos were granted leave to appeal.

The Court of Appeals reinstated the breach of physician-patient privilege claim, determining that the plaintiffs had sufficiently alleged the elements for that cause of action, namely: “(1) the existence of a physician-patient relationship; (2) the physician’s acquisition of information relating to the patient’s treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient’s medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages.” Chanko v. American Broadcasting Companies Inc., __ N.E.3d__ (2016). The Court rejected the defendants’ argument that the disclosed medical information must be of an embarrassing nature to support such a cause of action. The Court also rejected the argument that the blurring of Mr. Chanko’s face on screen and the fact that his name was not used warranted dismissal of the breach of confidentiality claim. Not only had someone outside the family recognized Mr. Chanko on the episode, but sensitive medical information and the patient’s identity had been revealed to the ABC employees themselves throughout the filming and editing process. The Court surmised that additional information would come out in discovery to either support or negate the plaintiffs’ claim, but that they had met their burden to defeat the motion to dismiss.

Things got murkier, however, when the Court turned to the intentional infliction of emotional distress claim. The Court revisited the four elements of the cause of action: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Chanko (2016), quoting Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). “‘Liability has been found,’” the Court warned, “‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id., quoting Howell, 81 N.Y.2d at 122.

The Court ultimately determined that while the plaintiffs’ allegations facially addressed all of the required elements of the claim, the allegations “do not rise to the level necessary to satisfy the outrageousness element.” Id. While the Court found the defendants’ conduct “offensive,” it was not “so atrocious and utterly intolerable” to support the claim. Id. The decision includes a highlight reel of conduct that the Court of Appeals and Appellate Divisions have deemed similarly not outrageous enough, such as a newspaper’s publication of a photo of a patient in a psychiatric facility (thus publicizing that person’s status as a patient there) and a TV station showing recognizable images of rape victims after repeatedly promising that they would not be identifiable. Id.

This decision highlights what some may view as the dangers of an appellate court—in this case, New York’s highest—evaluating the facts on the merits, rather than considering only the sufficiency of a pleading (and leaving it to a trial judge or jury to sift through the facts). The case also serves as a warning: if you’re ever headed to the emergency room, make sure to wear something you wouldn’t mind being photographed in.

May 2016 CMM Newsletter: Hiring Tips, Trade Secrets Bill, and Overtime Updates

Posted: June 7th, 2016

April 2016 CMM Firm Newsletter: Telecommuting, Paid Family Leave, Networking Advice for Startups

Posted: June 7th, 2016

CMM Partners All Achieve AV Preeminent® Ratings

Posted: June 7th, 2016

Campolo, Middleton & McCormick, LLP, has announced that all four partners of the firm—Joe Campolo, Scott Middleton, Patrick McCormick, and Christine Malafi—have earned AV Preeminent ratings from Martindale-Hubbell®, the highest possible rating from the most recognized and trusted legal directory and resource for nearly 150 years. The AV Preeminent rating recognizes attorneys for both ethical standards and legal ability, and is earned only after an extensive peer review and recommendation process that includes members of the bar and judiciary. Frederick Eisenbud, Of Counsel to the firm and chair of the Environmental & Land Use practice group, also holds an AV Preeminent rating.

A peer named Campolo as “the first recommendation to my clients for business and commercial law issues,” while Middleton was recognized for being “an outstanding trial attorney” and “respected by the judiciary.” A fellow lawyer shared that McCormick “would be my number one choice” for personal representation. Malafi was praised for having an “exceptional legal mind” and ethical standards “beyond reproach.”

The partners of the firm all continue to shape Suffolk County’s legal and business landscape by serving on the boards of some of its most prestigious professional organizations. In recognition of their legal skill and community involvement, they have won numerous awards in addition to achieving the AV Preeminent rating. In 2016, Campolo was voted the Best Lawyer on Long Island for the second year in a row and Malafi was named a Top Woman in Law. Both Middleton and McCormick are recent recipients of LIBN Leadership in Law Awards and have been named New York Super Lawyers for several years running.

McCormick Elected to Suffolk County Bar Association Board of Directors

Posted: May 27th, 2016

CMM partner Patrick McCormick was installed as a member of the Board of Directors of the Suffolk County Bar Association at the 108^th Installation Dinner Dance on Friday, June 3. The gala event at the Cold Spring Country Club in Huntington celebrated the incoming officers and directors and honored those SCBA members who have made an indelible mark on the community over the past year.

McCormick chairs the Litigation & Appeals practice group at Campolo Middleton. He has been named to New York Super Lawyers – Metro Edition for several years running and has also earned an AV Preeminent rating on Martindale Hubbell.

In addition to his new role at the SCBA, McCormick also serves as an Associate Dean and Officer of the SCBA’s Academy of Law and as Secretary of the Board of Directors of Developmental Disabilities Institute (DDI), a nonprofit organization serving over 1,500 children and adults with autism. In recognition of his legal work and community involvement, he received an LIBN Leadership in Law Award in 2015.

Campolo, Middleton & McCormick Petitions U.S. Supreme Court in Fair Housing Act Case

Posted: May 26th, 2016

By: Lauren Kanter-Lawrence, Esq. email

Tags: municipal, Supreme Court

Campolo, Middleton & McCormick, LLP, a premier law firm, has filed a petition with the United States Supreme Court on behalf of Safe Harbor Retreat, a residence in East Hampton, New York, for individuals in recovery from drug and alcohol addiction. The May 18, 2016 petition asks the nation’s highest court to settle a split among the circuit courts as to when the denial of an applicant’s request for a reasonable accommodation under the Fair Housing Act becomes justiciable.

“The question presented by this case is of critical import to the millions of disabled Americans who are denied equal enjoyment and access to housing every day,” said Joe Campolo, lead counsel on the petition. “While the chances of the Supreme Court granting certiorari in connection with any petition are notoriously slim, we have put forth very strong reasons for them to do so here.”

It is a rare and special opportunity for a law firm to file such a petition. In addition to Campolo, the CMM team included Patrick McCormick, Fred Eisenbud, and Lauren Kanter-Lawrence.

Campolo, Middleton & McCormick is known for taking on the most difficult cases. The firm spearheaded the legal challenge to the MTA payroll tax, a fight later joined by municipalities and legislators across the region; obtained the first civil judgment against sub-brokers of the Agape World Ponzi scheme, obtaining a multimillion dollar damage award; and represented an emerging medical device company in a complicated trade secret misappropriation case involving highly technical issues in the esteemed Delaware Court of Chancery.