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State once sued Rick Scott for insider trading, court raised questions about what he knew

Rick Scott wants to be governor of a state that once sued him for insider trading.

In 1997, as the FBI unleashed a massive criminal investigation of Scott's hospital chain, Florida's State Board of Administration filed a lawsuit accusing Scott and his fellow hospital directors of profiting from a culture of corruption and selling stock 23 days before federal agents raided the company's offices in Texas.

Ultimately, the insider trading charge was dismissed by a judge without trial, but not before an appeals court said that there was a chance that Scott  should have known "of the arrangements that allegedly violated health care laws and regulations."

Florida's case, filed in Tennessee state court, was shelved as a bigger federal suit against Scott and 10 other Columbia/HCA officials proceeded involving numerous other state pension funds.

That larger case, which was separate from the federal investigation of Columbia/HCA that led to $1.7 billion in fines, leveled many of the same claims as the Florida state suit. Its list of defendants also included Scott, who had been forced out as the company's CEO on July 25, 1997, about two weeks before the suits were filed.

Six years later, the federal case was settled for about $14 million but because it never went to trial the questions of whether Scott knew of the fraud were never answered.

The old lawsuits, which the Herald/Times obtained Thursday as part of a state public records request, add another detail to the governor's race between Scott, a Republican, and Florida's Chief Financial Officer Alex Sink, a Democrat.

The scandal at Columbia/HCA and the State Board of Administration's management of its investments have become key campaign issues. Sink uses the hospital chain's woes to paint Scott as unethical. Scott says Sink has wasted her chance to protect state money, pointing out Florida' investment portfolio lost millions under Sink's watch. Scott also notes that Sink sat on the board of a Tampa-based call center in 2000 when the state sued the company for stock losses.

"Alex Sink's campaign is now pushing this story and it shows how desperate she is to muddy the waters about her own failures as CFO,'' Scott spokesman Brian Burgess said.

Sink's campaign spokesman Dan McLaughlin hit back at Scott, saying the lawsuit is "another example of Rick Scott avoiding having to answer for a long pattern of fraudulent and unethical business practices....he must answer whether he got an insider advantage."

The case itself never went to trial. At one point, a federal judge threw the whole case out but an appeals court reinstated much of the case, but not the insider trading claims.

According to the evidence presented in the lower court, Scott and his colleague, Thomas Frist, were active in the company's mergers and acquisitions operations. The appelate court said in its 2001 ruling that while there was "nothing improper or illegal per se about either 'expansion by acquisition'...the participation of Scott and Frist implies knowledge of the arrangements that allegedly violated health care laws and regulations.''

The lawsuit by Florida's pension fund and the larger suit of shareholders from other states alleged that Scott owned 9.4 million shares of Columbia/HCA. He had sold 128,000 shares from 1995 to 1997, including 90,000 on one day in February 1995.That $2.65 million payday was flagged by plaintiffs, who noted the sale came 23 days before Columbia/HCA offices were raided by federal agents as part of a long-term investigation.

A week after the hospital offices were raided, the New York Times published a "special report'' detailing Medicare and Medicaid violations after a yearlong examination of more than 30 billion billing records from the company.

The federal investigation ultimately led to the $1.7 billion federal fine, which Columbia/HCA agreed to pay. When the company's stock value dropped, shareholders who had lost millions sued, claiming that the directors violated their fiduciary duty and should have known the company's billing practices would have violated federal Medicare laws. 

The Times reported that its reporters did not give the company an opportunity to review its data, but had provided company officials with its findings over a period of several months.

The appellate court said there was not enough evidence to support an insider trading complaint. But, it concluded, that the members of the Columbia/HCA board, many of whom had experience running other hospitals, could have known that the goals Scott set out for the chain's hospitals -- achieving a 15- to 20 percent growth in reimbursement from Medicare -- would have been unrealistic. As a result of those profit targets, critics say, the company helped encourage fraud that ultimately led to the federal investigation.

The court found that the facts "are sufficient to create a reasonable doubt'' that "at least five of Columbia's directors, including Scott,'' should have known their actions could have drawn a federal investigation, the court wrote in its opinion.

The facts, the court said, "presented a substantial likelihood of director liability for intentional or reckless breach of the duty of care.''

Scott, who was never charged with a crime, has said that he should have hired more auditors to flag the practices that led to the charges against his company. But, since the case never went to trial, it was never determined how much he or other company executives knew.

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