While I am in favor of "doing something," I think we need to be careful to avoid the "help in the worst way" syndrome. We don't want to dilute our own business law brand in an indignant but ineffective reaction to what appears on its face to be a problem. Is it really a problem? How many students are actually using these services? Op-eds should propose a workable solution. Any suggestions?
A trademark or brand dilution qui tam claim would be creative but unworkable under state and federal false claims acts. The most expansive state FCA is New York's:
http://www.taf.org/resources/statefca/new-york
Like the federal FCA, in general terms, it requires the presentment to the State of a false claim for payment of money or property. To get beyond mere symbolism, such a claim would need a single defendant with enough accessible assets to make it worthwhile for the US DOJ or state AG to investigate the case. One potential defendant class: universities that take federal $$ knowing (or in deliberate disregard of the facts) that their online courses are compromised by this kind of scam.
Kurt S. Schulzke, JD, CPA, CFE
Associate Professor of Accounting & Business Law
Director - Law, Ethics & Regulation
Corporate Governance Center
Kennesaw State University
Kennesaw, Georgia USA
+1770-423-6379 (O)
+1404-861-5729 (C)
[log in to unmask]
http://whistleblowercentral.com
----- Original Message -----
From: "Keith A Maxwell" <[log in to unmask]>
To: [log in to unmask]
Sent: Wednesday, September 12, 2012 12:45:31 AM
Subject: Re: Online course scam & qui tam
OK folks. Lets turn our outrage into action. Can ALSB as an organization take a stand--op-eds, etc.--to raise consciousness about this stuff?
Keith A. Maxwell, J.D.
Professor Emeritus of Legal Studies and Ethics in Business
Nat S. and Marian W. Rogers Professor (Emeritus)
University of Puget Sound
Tacoma, WA
http://www2.ups.edu/faculty/maxwell/home.htm (archived)
Adjunct Professor of Business Law
Dixie State College
Saint George, UT
https://www.dixie.edu/business/maxwell.php
________________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Michael O'Hara [[log in to unmask]]
Sent: Tuesday, September 11, 2012 7:30 PM
To: [log in to unmask]
Subject: Re: Online course scam & qui tam
ALSBTALK:
A State qui tam action might be creative. For example, rather than direct diversion of funds it might seek restitution of trademark value lost. As for recovery, with all of those credit card numbers of co-conspriators I'm sure a few still would be active. Joint and several liablity?
The reason I mentioned the felony is to jump that civil discovery hurdle with a criminal search warrant.
Yeah, it might be phising for credit card numbers of victims who then would be less likely to call the cops. In pari delecto?
Michael
Professor Michael J. O’Hara, J.D., Ph.D.
Mammel Hall 228
Finance, Banking, and Real Estate Department
College of Business Administration
University of Nebraska at Omaha
6708 Pine Street
Omaha NE 68182
[log in to unmask]
402_554_2823 voice fax 402_554_2680 (not private)
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
Co-Editor, The Earnings Analyst
www.A-R-E-A.org
Book Review Editor, Economics & Business Journal
http://ecedweb.unomaha.edu/neba/journal/home.htm
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Kurt Schulzke
Sent: Tuesday, September 11, 2012 17:25
To: [log in to unmask]
Subject: Re: Online course scam & qui tam
A qui tam is theoretically possible. It's success would depend on a variety of factors including whether the website under discussion is a real business perpetrating a fraud, or, alternatively, a "troll" designed to get people like college profs all in a lather.
Beyond the troll question, the statutory requirements for a federal qui tam are set forth at http://www.taf.org/resource/fca/federal-law. As a practical matter, speaking as a qui tam attorney, I wonder how much money, if any, the federal government has lost, and whether an outsider, like an indignant business law prof, could find the evidence necessary, pre-discovery, to get past a Rule 9(b) motion to dismiss.
Kurt S. Schulzke, JD, CPA, CFE
Associate Professor of Accounting & Business Law Director - Law, Ethics & Regulation Corporate Governance Center Kennesaw State University Kennesaw, Georgia USA
+1770-423-6379 (O)
+1404-861-5729 (C)
[log in to unmask]
http://whistleblowercentral.com
----- Original Message -----
From: "Michael O'Hara" <[log in to unmask]>
To: [log in to unmask]
Sent: Tuesday, September 11, 2012 5:27:02 PM
Subject: Re: For those of you who are teaching online courses
ALSBTALK:
In most jurisdictions obtaining a public record under false pretenses will be a felony. But, can you get service of process on the defendant's agent who is aiding and abetting the fraud?
http://api.fastdomain.com/cgi/whois?domain=wetakeyourclass.com
For example, http://nebraskalegislature.gov/laws/statutes.php?statute=s8703002000
Would a qui tam action be in order?
Michael
Professor Michael J. O'Hara, J.D., Ph.D.
Mammel Hall 228
Finance, Banking, and Real Estate Department
College of Business Administration
University of Nebraska at Omaha
6708 Pine Street
Omaha NE 68182
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
402_554_2823 voice fax 402_554_2680 (not private)
[log in to unmask]
Co-Editor, The Earnings Analyst
www.A-R-E-A.org
Book Review Editor, Economics & Business Journal
http://ecedweb.unomaha.edu/neba/journal/home.htm
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