Brian M. Feldman

Brian Feldman is a former Assistant United States Attorney with a wealth of federal litigation and government investigation experience. His practice focuses on government investigations, internal investigations, and trials and appeals in federal and New York State courts.

Before joining Harter Secrest & Emery, Brian spent six years with the United States Attorney's Office for the Southern District of New York in Manhattan, where he served as Senior Litigation Counsel and a member of the Civil Frauds Unit. During his time at the U.S. Attorney’s Office, he represented the United States as lead counsel in more than a hundred cases, directing government investigations, leading trials and appeals, and counselling federal agencies on matters involving access to government records, bankruptcy, constitutional law, civil rights, customs, environmental law, federal programs, fraud, health care, immigration, national security, racketeering, tax, and tort. In addition to his substantial trial experience, Brian has briefed and argued cases before state and federal appellate courts.

At Harter Secrest & Emery, Brian frequently represents organizations and individuals facing federal and state investigations and conducts internal investigations for clients responding to allegations of possible wrongdoing. Likewise, he handles whistleblower actions, representing both whistleblowers and defendants in qui tam suits under the False Claims Act and related statutes. In addition, he regularly represents litigants in state and federal proceedings, as well as in pre-litigation disputes.

Among his professional experiences, Brian has:

• Defended and represented organizations and individuals involved in federal and state investigations by the U.S. Department of Justice, Federal Bureau of Investigation, Securities & Exchange Commission, U.S. Department of Health and Human Services, U.S. Department of Education, Federal Trade Commission, U.S. Postal Service, New York State Attorney General, New York State Department of Health, New York State Education Department, and other federal and state agencies, including in the areas of civil rights, consumer protection, fraud, health care, national security, professional licensing, and securities.
• Designed and conducted internal investigations for businesses, ranging from not-for-profits to Fortune 500 companies, to assess potential exposure to criminal, civil, and regulatory liability and to advise clients on their rights, obligations, and optimal strategies for avoiding or reducing risks.
• Guided clients through the process of self-disclosure to federal and state regulators and law enforcement.
• Represented plaintiffs and defendants in whistleblower suits under the federal False Claims Act and the New York State False Claims Act, including cases involving health care, education, and financial fraud.
• Represented organizations and individuals in commercial disputes, including antitrust litigation, business dissolution proceedings, contract disputes, fraud actions, and insurance disputes in matters litigated in federal and New York State courts, as well as matters resolved outside of court.
• Advised health care providers, pharmacies, and physicians regarding health care compliance, such as Medicare and Medicaid program compliance and compliance with the 340B drug discount program, often in circumstances of heightened sensitivity, such as in the midst of pending or anticipated criminal investigations, False Claims Act suits, governmental audits, or commercial disputes.

PROFESSIONAL & CIVIC AFFILIATIONS

• Panelist, Second Circuit Pro Bono Panel
• Member, Federal Bar Council
• Member, University of Virginia Program in Law and Public Service Alumni Board
• Board of Editors, Federal Bar Council Quarterly

HONORS & AWARDS

• AV Preeminent® Peer Review Rated by Martindale-Hubbell
• Selected to the Upstate New York Super Lawyers Rising Stars list, 2013-2016

REPRESENTATIVE EXPERIENCE

• Directed the federal government's investigation in United States v. Deutsche Bank AG, 11 Civ. 2967 (S.D.N.Y.), the first major False Claims Act action against a mortgage lender arising out of lending practices precipitating the housing crisis, a case that ultimately settled for more than $200 million.
• Secured the dismissal of tax refund claims brought by the estate of James M. Henson, the creator of the Muppets, in Estate of James Henson v. United States, 05 Civ. 8212 (S.D.N.Y.).
• Prosecuted violations of civil rights laws protecting persons with disabilities, including matters alleging violations of the accessibility provisions of the Fair Housing Act by designers of residential rental towers in Manhattan, see, e.g., United States v. CVP I, LLC, 08 Civ. 7194 (S.D.N.Y.), and matters alleging violations of the accessibility provisions of the Americans with Disabilities Act by owners and operators of hotels, see, e.g., United States v. GPH Management, LLC, 11 Civ. 6238 (S.D.N.Y.).
• Managed litigation pursuant to an historic civil RICO consent decree over the International Brotherhood of Teamsters, United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (S.D.N.Y.), including by prosecuting criminal contempt, monitoring international elections, and presenting FBI testimony to a court-appointed disciplinary board comprised of former Attorney General Benjamin R. Civiletti, former U.S. Attorney Joseph E. DiGenova, and former FBI and CIA Director William H. Webster.
• Litigated First Amendment and Religious Freedom Restoration Act matters, including the class actions, Milstein v. Bureau of Prisons, 07 Civ. 7434 (S.D.N.Y.) and Kelly v. Lapan, 07 Civ. 4149 (S.D.N.Y.), regarding access to religious books.
• Protected top-secret intelligence records and other significant records of the CIA, State Department, Pentagon, Justice Department, and Department of Homeland Security from disclosure in Amnesty International USA v. Central Intelligence Agency, 07 Civ. 5435 (S.D.N.Y.), a case brought under the federal Freedom of Information Act.
• In a copyright infringement case presenting questions of first impression, persuaded the U.S. Court of Appeals for the Second Circuit that a copyright holder’s presence in New York was insufficient to establish personal jurisdiction in New York over alleged infringers, in Troma Entertainment, Inc. v. Centennial Pictures Inc., 729 F.3d 215 (2d Cir. 2013)
• As Circuit-appointed pro bono counsel in a groundbreaking appeal, secured an opinion from the U.S. Court of Appeals for the Second Circuit that effectively struck a series of “confusing” New York State prison rules in Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016).

NEWS

• Quoted, “Manhattan U.S. Attorney Announces $2.95 Million Settlement With Hospital Group for Improperly Delaying Repayment of Medicaid Funds,” U.S. Attorney for the Southern District of New York, August 2016
• Quoted, “U.S. Pursues New Tack in VW Emissions Probe,” Wall Street Journal, March 2016
• Profiled in Corporate Counsel article, “Making Banks Pay,” May 2014
• Quoted in The Litigation Daily article, “More Banks May Face FCA Charges from Mortgage Crisis,” February 2014
• Quoted in Washington Post article, "Justice Department Taking Larger Role on SEC’s Turf,” November 2013
• Featured in Fast Start, "The Chemistry of Corporate Defense," Rochester Business Journal, November 2013
• Quoted in Reuters article, “Bank of America Verdict Spotlights U.S. Focus on Civil Cases,” October 2013
• Featured Expert, “More Whistleblowers – Not Working Groups – Needed for Housing Crisis, Ex-Assistant U.S. Attorney Says,” (interview with Steven Meyerowitz), Financial Fraud Law blog, February 2012

PUBLICATIONS

• Co-Author, "Strategic Use of Rule 502(d) in Civil and Criminal Proceedings," New York Law Journal, February 2016
• Author, "Health Care Overpayments and Reverse False Claims," New York Law Journal, September 2015
• Author, “The Federal Government’s Search for Mortgage Industry Whistleblowers,” National Mortgage Professional Magazine, August 2012
• Author, “Navigating Federal Anti-Fraud Subpoenas,” New York Law Journal, January 2012