Kohn, Kohn & Colapinto

Kohn, Kohn & Colapinto, a Washington, D.C. law firm specializing in employment law, represents whistleblowers in the United States. "Washingtonian Magazine", in its December 2004 issue, named the firm the top whistleblower within the Beltway. The three partners are brothers Stephen M. Kohn, Michael D. Kohn, and David K. Colapinto. The firm's most famous client was Department of Defense employee Linda Tripp.

The Federal Bureau of Investigation Cases

The law firm founded by the Kohn brothers in 1988 first focused on defending nuclear power industry whistleblowers, who were retaliated against by their employers for revealing nuclear safety problems. This led to other areas of whistleblowing litigation, most prominently in the firm's defense of federal employees. KKC defended African American FBI agents charging racial discrimination within the bureau . The firm also defended Dr. Frederic Whitehurst, a forensics expert who blew the whistle on the lax standards at the Federal Bureau of Investigation (FBI) Laboratory and subsequently suffered retaliation by the agency. Involvement in the FBI Lab case involved KKC in the O.J. Simpson murder case, as the forensic standards used by the prosecutors, and the forensic work itself such as DNA analysis, were called into question by Whitehurst's revelations against the FBI Lab, which had become the national authority in the field of forensics investigations.

The Linda Tripp Privacy Act Case

Kohn, Kohn & Colapinto gained nationwide attention representing whistleblower Linda Tripp regarding her revelations of Monica Lewinsky's involvement in the sex scandal that brought about the impeachment of President Bill Clinton. The revelations that Lewinsky and Clinton had lied in their legal filings in the sexual harassment case brought against the sitting president by Paula Jones, and that Lewinsky had tried to suborn perjury from Tripp, who knew about her affair with Clinton, was one of the main factors influencing the articles of impeachment voted by the House of Representatives.

While the pro-Clinton spin engineered by Clinton's chief counsel Robert Bennett and journalist Sidney Blumenthal held that the matter simply was a matter of a conscience-stricken husband trying to keep a sordid "little" affair from his wife and child and the general public, the fact is that Bill Clinton was an attorney and former law professor. Clinton knew that lying in a court deposition was a crime, albeit, one seldom pursued in ordinary circumstances. However, occupying the Oval Office hardly can be considered ordinary circumstances, and Clinton and his First Lady Hillary, as supposed good liberals, were supposed to be on the side of the angels in such matters as sexual harassment. The misdemeanor that ultimately led to Clinton's disbarment and, arguably, the hypocrisy of the Clintons and the liberals who defended an accused sex harasser were like chum in the water before the sharks that were the Congressional Republicans under Newt Gingrich (himself having an extramarital affair at the time). The stakes—the Presidency itself in the upcoming 2000 election—were very high, and Tripp found herself out of her depth. She turned to Kohn, Kohn & Colapinto, seeking help.

Kohn, Kohn & Colapinto handled Tripp's lawsuit against the Justice Department and the Department of Defense under the Privacy Act of 1974. Tripp had sued the government for violating her rights under the Privacy Act when the Clinton Administration leaked confidential details of her employment record to the press. The government eventually settled with Tripp, including agreeing to a one-time payment of more than $595,000, a retroactive promotion, and retroactive pay at the highest salary for 1998, 1999 and 2000. She also received a pension and was cleared to work for the federal government again. Her rights to remain part of a class action lawsuit against the government were also preserved.

"Qui tam" actions

The firm also handles suits filed under the "qui tam" provisions of the False Claims Act. [usc|31|3729 through usc|31|3733.] These provisions allow persons and entities with knowledge of fraud committed against the federal government to sue the perpetrator on behalf of the United States, either with the government joining the action or, if the government declines, as a private plaintiff on their own. "Qui tam" has its roots in the Abraham Lincoln administration, as Lincoln was concerned with fraud by government contractors during the Civil War.

The "Murphy" tax case

One of the firm's clients was defeated after a preliminary victory in the tax refund case of Murphy v. IRS [2006-2 U.S. Tax Cas. (CCH) paragr. 50,476, 2006 WL 2411372 (D.C. Cir. Aug. 22, 2006).] , in which the Court of Appeals for the District of Columbia originally held usc|26|104(a)(2) unconstitutional to the extent the statute purports to tax emotional distress awards unrelated to lost wages. On December 22, 2006, the Court vacated its own judgment in that case.

According to the Web site [http://www.taxanalysts.com/ Tax Analysts] , "Murphy v. IRS" "is not only one of the most significant tax decisions in decades, it is one of the most important constitutional cases in decades as well". The now-voided ruling had shaken up the tax community as it is rare for a federal court to hold that a tax law is unconstitutional. The case was argued for the appellants by Colapinto, who was assisted on the briefs by S. Kohn.

On July 3 2007, the Court ruled against Ms. Murphy. The court held (1) that the taxpayer's compensation was received on account of a non-physical injury or sickness; (2) that gross income under section 61 of the Internal Revenue Code [usc|26|61.] does include compensatory damages for non-physical injuries, even if the award is not an "accession to wealth," (3) that the income tax imposed on an award for non-physical injuries is an indirect tax, regardless of whether the recovery is restoration of "human capital," and therefore the tax does not violate the constitutional requirement of Article I, section 9, that capitations or other direct taxes must be laid among the states only in proportion to the population; (4) that the income tax imposed on an award for non-physical injuries does not violate the constitutional requirement of Article I, section 8, that all duties, imposts and excises be uniform throughout the United States; (5) that under the doctrine of sovereign immunity, the Internal Revenue Service may not be sued in its own name. [Opinion on rehearing, July 3, 2007, "Murphy v. Internal Revenue Service and United States", case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit, 2007-2 U.S. Tax Cas. (CCH) paragr. 50,531 (D.C. Cir. 2007).] The Court stated: " [a] lthough the 'Congress cannot make a thing income which is not so in fact,' [ . . . ] it can "label" a thing income and tax it, so long as it acts within its constitutional authority, which includes not only the Sixteenth Amendment but also Article I, Sections 8 and 9." [Opinion on rehearing, July 3, 2007, p. 16, "Murphy v. Internal Revenue Service and United States", case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit, 2007-2 U.S. Tax Cas. (CCH) paragr. 50,531 (D.C. Cir. 2007).] The court ruled that the personal injury award Ms. Murphy received was "within the reach of the congressional power to tax under Article I, Section 8 of the Constitution" -- even if the award was "not income within the meaning of the Sixteenth Amendment". [Opinion on rehearing, July 3, 2007, p. 5-6, "Murphy v. Internal Revenue Service and United States", case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit, 2007-2 U.S. Tax Cas. (CCH) paragr. 50,531 (D.C. Cir. 2007).] Ms. Murphy's tax refund claim was denied.

An appeal subsequently filed for a rehearing en banc was denied on September 14, 2007. KKC plans to appeal the case to the Supreme Court.

The Bristol-Myers-Squibb "Qui Tam" Case

Kohn Kohn & Colapinto is one of seven law firms that successfully brought "qui tam" actions against Bristol-Myers Squibb Company (BMS) and its subsidiary, Apothecon, Inc., for Medicare and Medicaid fraud linked to its drug pricing and marketing practices. According to U.S. Attorney Michael J. Sullivan of Boston, BSM negotiated a settlement with the U.S. Department of Justice and the attorneys general of several states, agreeing to reimburse state and federal governments a total of $499 million, plus over $16 million in interest. [http://www.pacificnewscenter.com/default.asp?sourceid=&smenu=73&twindow=&mad=No&sdetail=13382&wpage=&skeyword=&sidate=&ccat=&ccatm=&restate=&restatus=&reoption=&retype=&repmin=&repmax=&rebed=&rebath=&subname=&pform=&sc=1718&hn=pacificnewscenter&he=.com] The drug company, which fully cooperated with the government, admitted that it paid illegal remuneration to doctors and health care providers to influence them to purchase BMS' pharmaceuticals and prescribe certain BMS drugs for "off-label" usage. BMS and its Apothecon caused the submission of fraudulent claims against Medicare and Medicaid.

KKC and the other six law firms will share approximately $50 million as their share of the federal government's settlement amount, and an additional share of the state settlement amount, which totals approximately $328 million. The firms also will share in the state settlements. [http://www.usdoj.gov/usao/ma/Press%20Office%20-%20Press%20Release%20Files/Sept2007/BMS-PR-Final.html]

ee also

* [http://www.taxanalysts.com/www/freefiles.nsf/Files/Murphy.pdf/$file/Murphy.pdf#search=%22murphy%20leveille%20appellees%22/ "Murphy v. IRS"] The August 2006 Murphy decision (later vacated).

* Tax protester constitutional arguments

Notes

External links

* [http://www.kkc.com Kohn, Kohn & Colapinto website]