When Michael K. Loucks, a prominent health care industry prosecutor, left the U.S. attorney’s office in Boston and began working as a corporate defense attorney, he made the front page of The New York Times.
Readers sent him angry letters about switching sides, but they weren’t the only ones who were unhappy.
“I have friends in the government who are upset and don’t even want to talk to me now that I’ve ‘changed sides,’” Loucks said in a talk Friday during the Pharmaceutical Regulatory and Compliance Congress and Best Practices Forum, a conference in Washington, D.C., for compliance officers.
“There is a real edge to the public perception on some aspects of what goes on in both law enforcement and delivery of health care,” he added. “My moving from one position to the other is a thing that some people think is to the detriment of the common good. I thought that was kind of funny when I read it.”
The negative perception of the health care industry and of his move does not make much sense to Loucks.
“This is the kind of idea, this is the problem with the revolving door, that somehow I stopped being a good, honest person because I decided to work with folks in the healthcare industry,” he said. “I really think that there are particularly people who take too extreme a viewpoint and in many respects that hurts the efficacy of working toward a solution.”
“Every single one of us has at some point needed the delivery of health care that comes from the entities that are represented in this room,” he added. “I don’t know how working with people in your positions is to the detriment of the common good of the United States, but apparently it’s a commonly held view.”
While Loucks has been slammed for switching allegiances, he said his views haven’t changed much since leaving the government. “One of the most interesting things from my perspectives on changing positions was that I had a view on Park Doctrine with the government and that’s exactly the same view I have today,” he said. “I had a postion on whistleblowers, and that’s exactly the same view I have today.”
The Park Doctrine, which stems from the Supreme Court case United States v. Park, says the Food and Drug Administration can prosecute corporate officers for the actions of a subordinate even if the executive had no knowledge of the employee’s activities. The government’s use of the doctrine has been controversial.
“This whole notion of Park prosecutions is a bad idea,” Loucks said. “Unfortunately it is an idea that has been affirmed by the Supreme Court, but nevertheless I think it’s a bad idea and I had that view as a prosecutor. There are some people who say I only have that view now because I’m on the defense side, but I had that view as a prosecutor.”
Loucks has also spoken out publicly against massive whistleblower settlements since leaving the U.S. attorney’s office and joining Skadden, Arps, Slate, Meagher & Flom LLP in Boston.
“It’s clear to me now that there is a vast sort of dichotomy between what are some of the purposes of the whistleblower statute and what are equally important features of the whole compliance stucture that the Inspector General wants everyone to have… and that the two don’t work well together with the current incentives,” he said at the conference. “The current structure is far too heavily incentivized to whistle-blowing instead of complying.”
Loucks wasn’t able to air those views as part of the Justice Department, and he said the polarization between the two sides means that now those positions aren’t taken as seriously.
“One of the impacts of polarization is that people don’t talk to each other as effectively as they could and they don’t listen to each other as effectively as then can,” he said.”That has an impact on how the cases get resolved.”
Loucks ended his talk with a video of a revolving door. “For me it only revolved once in 24 years,” he said. “But I am apparently the person for who the door…” He paused as the screen showed the revolving door exploding in a shower of glass.
“I feel like giving you a hug, Mike,” the moderator said.