A Misleading DOJ Press Release

August 17, 2016

By: Sara Kropf

I was surprised to read the headline of a recent DOJ press release: “Former Acclarent, Inc. Executives Convicted of Crimes Related to the Sale of Medical Devices.” I was surprised because I thought I’d read that the case had been a big win for the defense.

So I read the press release.

The first paragraph said that the former CEO and a former VP of Acclarent “were convicted by a federal jury in connection with distributing adulterated and misbranded medical devices.”

The second paragraph named the two defendants and noted that they “were convicted by a jury following a six week trial of 10 counts of introducing adulterated and misbranded medical devices into interstate commerce.”

Wow, ten counts? That sounds like a big win for DOJ.

The third paragraph described the counts of conviction in a fair amount of detail:

The jury concluded that Facteau and Fabian caused the unlawful distribution of a medical device known as the Relieva Stratus Microflow Spacer (“Stratus”) for uses not cleared or approved by the U.S. Food and Drug Administration.  Despite the fact that the company had told the FDA that the Stratus was a medical device intended to maintain an opening to a patient’s sinus, Facteau and Fabian launched the product intending it to be used as a steroid delivery device.  The FDA, however, had specifically refused Acclarent’s request to clear the Stratus for marketing as a drug delivery device without further submissions to support that use.

It sure sounds like these two are some bad dudes, right?

The fourth paragraph of the press release described the “evidence at trial” that apparently led to the convictions.

The evidence at trial demonstrated that Facteau and Fabian sought to quickly develop and market products, including the Stratus as a drug delivery device, to create a projected revenue stream that would make Acclarent an attractive business for either an initial public offering or acquisition.

There must have been an overwhelming amount of “evidence at trial” to lead to these very serious convictions. I’m already pondering a possible blog post about this type of health care fraud. Hmmm…CEO of a company…serious convictions…must be facing a lengthy prison sentence given the loss calculation.

Then I read the FIFTH paragraph:

The jury acquitted Facteau and Fabian on 14 felony counts of fraud.  The 10 counts of conviction were misdemeanor counts related to the same conduct.

Wait. What?

After four full paragraphs explaining that these two executives had been “convicted” of “10 counts” and describing the serious charges and “evidence at trial,” DOJ finally says that the two executives were convicted of minor misdemeanors and face a year in jail.


DOJ is a government agency. It’s not a private firm selling its success stories. It’s not hustling for clients.

So why is it using PR strategies to try to “sell” a big loss in a huge health care fraud trial as a win? DOJ did the same thing to Don Blankenship. It put out a press release about how he was convicted of a “federal conspiracy charge” that doesn’t even use the word “misdemeanor” in it.

I’ve always thought that DOJ’s press releases should report DOJ losses as well as wins. Why shouldn’t the public be made equally aware when DOJ loses a case as when it wins?

And given that DOJ (particularly SDNY) loves to put out press releases of indictments–before any evidence has ever been tested in court before a neutral fact-finder–shouldn’t it put out a press release when that indictment wasn’t proven at trial?

Take a look at the press release for the indictments of these two Acclarent executives. It describes very serious potential misconduct.

DOJ press releases about indictments come in high in Google’s search results. So whenever someone searches for those executives’ names, he will find those press releases. The least DOJ could do when it doesn’t obtain in a conviction is put out a press release fully clearing the person’s name.

Maybe the exoneration will show up second in the search results.




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