SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into among
(i) the United States of America, acting through the United States Department of Justice and on behalf of the Office of Inspector General (“OIG-HHS”) of the Department of Health and Human Services (“HHS”) (collectively, the "United States");
(ii) the State of Wisconsin ("Wisconsin");
(iii) the State of Minnesota (“Minnesota") (collectively with Wisconsin and the United States, the "Government Parties");
(iv) Advanced Pain Management Holdings, Inc. ("APMH");
(v) Advanced Pain Management S.C. (“APMSC");
(vi) APM Wisconsin MSO, LLC; (vii) Advanced Pain Management, LLC (“APM LLC”) (collectively with APMH, APMSC, APM Wisconsin MSO, LLC, and APM LLC, the "APM Entities"); and
(vii) and Gina Hedstrom (hereafter collectively referred to as "the Parties"), through their authorized representatives.
RECITALS
A. APMH is based in Milwaukee, Wisconsin, and through its wholly owned subsidiary APM Wisconsin MSO, LLC, owns, in whole or in part, and operates ambulatory surgery centers in Wisconsin and Minnesota. APMSC is also based in Milwaukee, Wisconsin. APMSC is managed by APM Wisconsin MSO, LLC and owns and operates health care clinics that employ and contract with physicians who are pain management specialists and provide pain management services. APMSC physicians perform pain management procedures at the APMH ambulatory surgery centers. APMH does not employ the APMSC-employed physicians.
B. On May 16, 2013, Gina Hedstrom filed a qui tam action in the United States
District Court for the Eastern District of Wisconsin captioned United States, et al. ex rel. Hedstrom v. Advanced Pain Mgmt., et al., Case No. 13-C-556, pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the "Civil Action")
C. The Government Parties contend that the APM Entities submitted or caused to be
submitted claims for payment to the Medicare Program, Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395kkk-1 ("Medicare"), and the Medicaid Program, 42 U.S.C. §§ 1396- 1396w-5 ("Medicaid").
D. The Government Parties contend that they have certain civil claims against the APM Entities for:
1. submitting claims for payment from December 1, 2015 through July 8, 2019 to Medicare, Wisconsin Medicaid, and Minnesota Medicaid for confirmatory urine drug tests that were not medically necessary. On December 23, 2019, the APM entities made a self-disclosure to the United States, that providers did not customize orders for confirmatory UDTs based on each patient's individualized risk assessment and circumstances, resulting in a higher level of coding than supported by the medical record. The conduct described in this Paragraph shall be referred to herein as the "Disclosed Covered Conduct.”
2. paying kickbacks to certain APMSC physicians during the period from January 1, 2012 until October 30, 2019 resulting from the following allegations:
(a) APMH established an Incentive Compensation Plan that granted stock shares in APMH to certain APMSC physicians who performed procedures at APMH's ambulatory surgery centers. The physicians were not employed by APMH the entity that issued the incentive stock.
(b) The incentive stock was given to APMSC physicians as a reward for past and anticipated referrals to APMH's ambulatory surgery centers. The incentive stock was not compensation given by the physicians' employer and was outside the scope of their employment.
(c) The incentive stock was to be redeemed at the time of a liquidity event and was dependent on the profitability of APMH at that time, which profitability was determined largely by APMSC physician referrals.
(d) APMSC also agreed to pay certain APMSC-employed physicians a monthly fee to act as medical directors of the individual ambulatory surgery centers. The medical directors were compensated using a tiered schedule based on the size of the ambulatory surgery center as determined by the number of procedures performed at each ambulatory surgery center, there were no written agreements specifying the responsibilities of each medical director, and the medical directors were not required to record or report what medical director functions they had performed.
As a result of the above allegations, the United States contends that neither the Incentive Stock Plan nor the medical director agreements met the Anti-Kickback Statute safe harbors and the APM Entities knowingly caused false or fraudulent claims to be submitted to federal healthcare programs in order to increase the number of procedures performed at the ambulatory surgery centers. This conduct, collectively with the Disclosed Covered Conduct, is referred to below as the "Covered Conduct.”
E. This Settlement Agreement is neither an admission of liability by the APM Entities nor a concession by the United States that its claims are not well founded. The APM Entities deny the allegations in Relator's complaint, and in paragraph C and D, above.
F. Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the proceeds of this Settlement Agreement and to Relator's reasonable expenses, attorneys' fees and costs.
To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of the above claims, and in consideration of the mutual promises and obligations of this Settlement Agreement, the Parties agree and covenant as follows:
TERMS AND CONDITIONS
1. The APM Entities shall pay to the Government Parties One Million Dollars ($1,000,000) (the "Settlement Amount") as follows:
(a) The APM Entities shall pay to the United States the Settlement Amount, which constitutes restitution to the Government Parties, no later than forty-five (45) days after the Effective Date of this Agreement by electronic funds transfer pursuant to written instructions to be provided by the United States Attorney's Office for the Eastern District of Wisconsin;
(b) The United States shall pay to Wisconsin Ninety Thousand, Eight Hundred and Sixty Three Dollars ($90,863) (the "Wisconsin Settlement Amount"), which constitutes Wisconsin's share of the Settlement Amount less Wisconsin's payment to Relator, as soon as feasible after receipt of the Settlement Amount, pursuant to written instructions to be provided by the Wisconsin Department of Justice; and
(c) The United States shall pay to Minnesota Nine Thousand, Five Hundred and Sixty Eight Dollars ($9,568) (the "Minnesota Settlement Amount"), which constitutes Minnesota's share of the Settlement Amount less Minnesota's payment to Relator, as soon as feasible after receipt of the Settlement Amount, pursuant to written instructions to be provided by the Office of the Minnesota Attorney General.
2. Conditioned upon the United States receiving the Settlement Amount from the APM Entities and as soon as feasible after receipt, the United States shall pay $152,270 on behalf of the Government Parties, to Relator by electronic funds transfer.
3.The APM Entities shall pay to the Relator and Relator's undersigned counsel One Hundred Fifty Thousand 00/100 Dollars ($150,000.00) as follows:
(a) The APM Entities shall pay to Relator the total sum of Twenty-five Thousand 00/100 Dollars ($25,000.00) in full satisfaction of any claims pursuant to 31 U.S.C. §3730(h), as a result of the Civil Action, and as described in Paragraph 11. Half of such payment represents payment for lost wages and benefits, from which there will be normal withholding, in accordance with regular payroll practices and applicable law, and with regard to which Relator will receive a Form W-2 indicating the payment, and the other half represents payment for special damages, not for wages or other periodic payment, which funds shall be paid to Relator as an IRS 1099 payment. The APM Entities make no representations with regard to the tax consequences of this payment, and Relator agrees that she shall be solely responsible for any taxes that might be owed by her as a result of this payment. Relator agrees to hold the APM Entities harmless with respect to any taxes, penalty or interest (including but not limited to FICA, Medicare tax, state unemployment premiums or other lawful deductions) assessed because of any payment made pursuant to this Agreement. Payment shall be made within five (5) business days of Effective Date of this Agreement by electronic funds transfer subject to instructions to be provided by Relator.
(b) Defendants shall pay to counsel for Relator the total sum of One Hundred Twenty-five Thousand and 00/100 Dollars ($125,000.00) in full satisfaction of any expenses, attorneys' fees and costs, as set forth in 31 U.S.C. § 3730(d)(1), as a result of the Civil Action, and as described in Paragraph 11. Payment shall be made within five (5) business days of Effective Date of this Agreement by electronic funds transfer, subject to instructions to be provided by Relator's counsel. The APM Entities acknowledge that this amount is commensurate with an ability-to-pay settlement and stipulates that Relator's undersigned counsel's standard hourly rate is $695.00, for purposes of this Agreement. Payment shall be reported on Forms 1099-MISC to Relator and Relator's Counsel and designated as "other income." Relator and Relator's undersigned counsel acknowledge that the Defendants shall not be responsible for any claims for expenses, attorneys' fees and costs, beyond the amount set forth in this Paragraph related to the Civil Action.
The above payments shall be delivered to Relator and her counsel within five (5) business days of the Effective Date of this Agreement, provided that Relator and Relator's counsel have timely delivered appropriate wiring instructions and each has provided a completed and executed IRS W-9 federal tax form to counsel for APM Entities (or within five business days following such delivery, whichever is later).
4. Subject to the exceptions in Paragraph 9 (concerning excluded claims) below, and conditioned upon the APM Entities' full payment of the Settlement Amount, and subject to Paragraph 20 (concerning bankruptcy proceedings) below, the United States releases the APM Entities together with their current and former: direct and indirect parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; and the corporate successors and assigns of any of them from any civil or administrative monetary claim the United States has for the Covered Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a; the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; or the common law theories of payment by mistake, unjust enrichment, and fraud.
5. In consideration of the obligations of the APM Entities in this Agreement and conditioned upon the APM Entities' full payment of the Settlement Amount, OIG-HHS agrees to release and refrain from instituting, directing, or maintaining any administrative action seeking exclusion from Medicare, Medicaid, and other federal health care programs (as defined in 42 U.S.C. § 1320a-7b(f)) against the APM Entities under 42 U.S.C. § 1320a-7a (Civil Monetary Penalties Law) or 42 U.S.C. § 1320a-7(b)(7) (permissive exclusion for fraud, kickbacks, and other prohibited activities) for the Disclosed Covered Conduct, except as reserved in this paragraph and in paragraph 9 (concerning excluded claims), below. OIG-HHS expressly reserves all rights to comply with any statutory obligations to exclude the APM Entities from Medicare, Medicaid, and other federal health care programs under 42 U.S.C. § 1320a-7(a) (mandatory exclusion) based upon the Covered Conduct. Nothing in this paragraph precludes OIG-HHS from taking action against entities or persons, or for conduct and practices, for which claims have been reserved in paragraph 9, below.
6. Subject to the exceptions in Paragraph 9 (concerning excluded claims) below, and conditioned upon the APM Entities' full payment of the Settlement Amount, and subject to Paragraph 20 (concerning bankruptcy proceedings) below, Wisconsin releases the APM Entities together with their current and former: direct and indirect parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; related captive professional corporations; and the corporate successors and assigns of any of them from any civil or administrative monetary claim Wisconsin has for the Covered Conduct under the Wisconsin False Claims for Medical Assistance Law, Wis. Stat. §§ 20.931 et seq., Wisconsin False Claims Statute, Wis. Stat. § 49.485, the Wisconsin Medical Assistance Fraud Statute, Wis. Stat. § 49.49(4m) et seq., or the common law theory of unjust enrichment.
7. Subject to the exceptions in Paragraph 9 (concerning excluded claims) below, and conditioned upon the APM Entities' full payment of the Settlement Amount, and subject to Paragraph 20 (concerning bankruptcy proceedings) below, Minnesota releases the APM Entities together with their current and former: direct and indirect parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; related captive professional corporation and the corporate successors and assigns of any of them from any civil or administrative monetary claim Minnesota has for the Covered Conduct under the Minnesota False Claims Act, Minn. Stat. §§ 15C.01 et seq., or the common law theory of unjust enrichment.
8. Subject to the exceptions in Paragraph 9 (concerning excluded claims) below, and conditioned upon the APM Entities' full payment of the Settlement Amount, and subject to Paragraph 20 (concerning bankruptcy proceedings) below, Relator, for herself and for her heirs, successors, attorneys, agents, and assigns, releases the APM Entities together with their current and former: direct and indirect parent corporations; direct and indirect subsidiaries; brother or sister corporations; divisions; related captive professional corporations; and the corporate successors and assigns of any of them from any civil monetary claim the Relator has on behalf of the United States and the states of Wisconsin and Minnesota for the Covered Conduct and
allegations in the Complaint under the False Claims Act, 31 U.S.C. §§ 3729-3733; the Wisconsin False Claims for Medical Assistance Law, Wis. Stat. §§ 20.931 et seq.; and the Minnesota False Claims Act, Minn. Stat. §§ 15C.01 et seq.
9. Notwithstanding the releases given in Paragraphs 4, 5, 6, 7, and 8 of this Agreement, or any other term of this Agreement, the following claims of the United States, Wisconsin, and Minnesota are specifically reserved and are not released:
(a) Any liability arising under Title 26, U.S. Code (Internal Revenue Code) or state revenue codes;
(b) Any criminal liability;
(c) Except as explicitly stated in this Agreement, any administrative liability including mandatory or permissive exclusion from Federal health care programs or state health care program.
(d) Any liability to the United States (or its agencies), Wisconsin, or Minnesota for any conduct other than the Covered Conduct;
(e) Any liability based upon obligations created by this Agreement;
(f) Any liability of individuals;
(g) Any liability for express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services;
(h)Any liability for failure to deliver goods or services due; and
(i) Any liability for personal injury or property damage or for other consequential damages arising from the Covered Conduct.
10. Relator and her heirs, successors, attorneys, agents, and assigns shall not object to this Agreement but agree and confirm that this Agreement is fair, adequate, and reasonable under all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). Conditioned upon Relator's receipt of the payment described in Paragraph 2, Relator and her heirs, successors, attorneys, agents, and assigns fully and finally release, waive, and forever discharge the Government Parties, their agencies, officers, agents, employees, and servants, from any claims arising from the filing of the Civil Action or under 31 U.S.C. § 3730 or Wis. Stat. § 20.931, and from any claims to a share of the proceeds of this Agreement and/or the Civil Action.
11.Conditioned upon full payment by the APM Entities of the amounts provided in Paragraph 3 (above), Relator for and on behalf of herself and her current, former and future heirs, executors, administrators, successors, agents, attorneys, and assigns, hereby waives, releases, acquits and forever discharges the APM Entities, including any and all current, former and future direct and indirect parent corporations, direct and indirect subsidiaries, brother or sister corporations, divisions, and the corporate successors and assigns thereof, former and future insurers, attorneys, representatives, partners, investors, stockholders thereof, as well as the current, former and future officers, directors, trustees, board members, agents and employees of any of the above, and all persons or entities acting by, through, under, or in concert with any of them ("APM Released Parties"), from: a) the Covered Conduct and any and all claims alleged or which could have been alleged in the Civil Action, whether known or unknown; b) any and all claims of any type arising prior to the execution of this Agreement under federal, state or local law; and c) any other claims arising out of or in any way related to Relator's employment and the termination of her employment, including but not limited to any claims pursuant to 31 U.S.C. §3730(h) or any other retaliation claims arising under federal or state law. Relator represents and agrees that: (a) she has not filed any lawsuits against any of the APM Released Parties in any court other than the Complaint; (b) she has not filed or caused to be filed any charges or complaints against any of the APM Released Parties with any municipal, state or federal agency charged with the enforcement of any law; (c) pursuant to and as a part of Relator's complete, total and irrevocable release and discharge of the APM Released Parties, to the fullest extent permitted by law, she shall not sue or file a complaint or grievance of whatsoever nature or description in any forum, judicial, administrative or otherwise, or support a claim filed by another APM Entities' employee. Relator represents and warrants that she is not currently aware of any legal claim that could lawfully be brought at this time against the APM Released Parties other than those encompassed within the Covered Conduct and the claims in the Civil Action, for which a full release is granted herein. Relator expressly waives any rights to seek re-employment with or be employed by APM Entities or any damages for rejection of any application for employment in violation of this provision. Additionally, conditioned upon full payment of the amounts provided in Paragraph 3 (above) by the APM Entities, Relator and Relator's undersigned counsel, for themselves and for their heirs, successors, attorneys, agents, and assigns, and any other person or entity acting on their behalf or asserting their rights, acknowledge that payment of the amount set forth in this Paragraph 3 for expenses, attorneys' fees and costs, fully and forever satisfies any obligations by the APM Released Parties to pay reasonable attorneys' fees, costs, and expenses to Relator and/or Relator's undersigned counsel pursuant to the False Claims Act, 31 U.S.C. § 3730(d)(1) in connection with the Civil Action and hereby agree to fully and finally release the APM Released Parties from any and all causes of action, rights, or claims, whether known or unknown, that Relator or Relator's undersigned counsel have asserted or could assert for attorneys' fees, costs and expenses in connection with the Civil Action.
12. The APM Entities provided sworn financial disclosure statements (Financial Statements) to the United States and the United States has relied on the accuracy and completeness of those Financial Statements in reaching this Agreement. The APM Entities warrant that the Financial Statements are complete, accurate, and current as of July 10, 2020. If the United States, Wisconsin, or Minnesota learn of asset(s) in which the APM Entities have an interest at the time of execution of this Agreement that were not disclosed in the Financial Statements, or if the United States, Wisconsin, or Minnesota learn of any misrepresentation by the APM Entities on, or in connection with, the Financial Statements, and if such nondisclosure or misrepresentation increases the estimated net worth set forth in the Financial Statements by $100,000 or more, the United States, Wisconsin, and Minnesota may at their option: (a) rescind this Agreement and file suit based on the Covered Conduct, or (b) let the Agreement stand and collect the full Settlement Amount plus one hundred percent (100%) of the value of the net worth of the APM Entities previously undisclosed. The APM Entities agree not to contest any collection action undertaken by the United States, Wisconsin, or Minnesota pursuant to this provision, and immediately to pay the United States, Wisconsin, or Minnesota all reasonable costs incurred in such an action, including attorney's fees and expenses.
13. In the event that the United States, Wisconsin, or Minnesota, pursuant to Paragraph 11 above, opt to rescind this Agreement, the APM Entities agree not to plead, argue, or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any civil or administrative claims that (a) are filed by the United States, Wisconsin, or Minnesota within 60 calendar days of written notification to the APM Entities that this Agreement has been rescinded, and (b) relate to the Covered Conduct, except to the extent these defenses were available on May 16, 2013.
14. The APM Entities waive and shall not assert any defenses the APM Entities may have to any criminal prosecution or administrative action relating to the Covered Conduct that may be based in whole or in part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the Constitution, this Agreement bars a remedy sought in such criminal prosecution or administrative action.
15. The APM Entities fully and finally release the Government Parties, their agencies, officers, agents, employees, and servants, from any claims (including attorney's fees, costs, and expenses of every kind and however denominated) that the APM Entities have asserted, could have asserted, or may assert in the future against the Government Parties, their agencies, officers, agents, employees, and servants, related to the Covered Conduct and the Government Parties' investigation and prosecution thereof.
16. The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by any Medicare contractor (e.g., Medicare Administrative Contractor, fiscal intermediary, carrier) or any state payer, related to the Covered Conduct; and the APM Entities agree not to resubmit to any Medicare contractor or any state payer any previously denied claims related to the Covered Conduct, agree not to appeal any such denials of claims, and agree to withdraw any such pending appeals.
17. The APM Entities agree to the following:
(a) Unallowable Costs Defined: All costs (as defined in the Federal
Acquisition Regulation, 48 C.F.R. § 31.205-47; and in Titles XVIII and XIX of the Social Security Act, 42 U.S.C. §§ 1395-13951ll-1 and 1396-1396w-5; and the regulations and official program directives promulgated thereunder) incurred by or on behalf of the APM Entities, its present or former officers, directors, employees, shareholders, and agents in connection with:
(1) the matters covered by this Agreement;
(2) the United States' audit(s) and civil investigation(s) of the matters covered by this Agreement;
(3) the APM Entities' investigation, defense, and corrective actions undertaken in response to the United States' audit(s) and civil investigation(s) in connection with the matters covered by this Agreement (including attorney's fees);
(4) the negotiation and performance of this Agreement; and
(5) the payment the APM Entities make to the United States pursuant to this Agreement and any payments that the APM Entities may make to Relator, including costs and attorneys' fees are unallowable costs for government contracting purposes and under the Medicare Program, Medicaid Program, TRICARE Program, and Federal Employees Health Benefits Program (FEHBP) (hereinafter referred to as Unallowable Costs).
(b) Future Treatment of Unallowable Costs: Unallowable Costs shall be separately determined and accounted for by the APM Entities, and the APM Entities shall not charge such Unallowable Costs directly or indirectly to any contracts with the United States or any State Medicaid program, or seek payment for such Unallowable Costs through any cost report, cost statement, information statement, or payment request submitted by the APM Entities or any of its subsidiaries or affiliates to the Medicare, Medicaid, TRICARE, or FEHBP
Programs.
(c) Treatment of Unallowable Costs Previously Submitted for Payment: The APM Entities further agree that within 90 days of the Effective Date of this Agreement it shall identify to applicable Medicare and TRICARE fiscal intermediaries, carriers, and/or contractors, and Medicaid and FEHBP fiscal agents, any Unallowable Costs (as defined in this Paragraph) included in payments previously sought from the United States, or any State Medicaid program, including, but not limited to, payments sought in any cost reports, cost statements, information reports, or payment requests already submitted by the APM Entities or any of their subsidiaries or affiliates, and shall request, and agree, that such cost reports, cost statements, information reports, or payment requests, even if already settled, be adjusted to account for the effect of the inclusion of the Unallowable Costs.
The APM Entities agree that the United States, Wisconsin, or Minnesota, at a minimum, shall be entitled to recoup from the APM Entities any overpayment plus applicable interest and penalties as a result of the inclusion of such Unallowable Costs on previously-submitted cost reports, information reports, cost statements, or requests for payment. Any payments due after the adjustments have been made shall be paid to the United States and/or Wisconsin and/or Minnesota pursuant to the direction of the Department of Justice and/or the affected agencies. The United States, Wisconsin, and Minnesota reserve their rights to disagree with any calculations submitted by the APM Entities or any of their subsidiaries or affiliates on the effect of inclusion of Unallowable Costs (as defined in this Paragraph) on the APM Entities or any of their subsidiaries or affiliates' cost reports, cost statements, or
information reports.
(d) Nothing in this Agreement shall constitute a waiver of the rights of the United States to audit, examine, or re-examine the APM Entities' books and records to determine that no Unallowable Costs have been claimed in accordance with the provisions of this Paragraph.
18. This Agreement is intended to be for the benefit of the Parties only. The Parties do not release any claims against any other person or entity, except to the extent provided for in Paragraph 19 (waiver of beneficiaries paragraph) below.
19. The APM Entities agree that they waive and shall not seek payment for any of the health care billings covered by this Agreement from any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payors based upon the claims defined as Covered Conduct.
20. If within 91 days of the Effective Date of this Agreement or of any payment made under this Agreement, the APM Entities commence, or a third party commences, any case, proceeding, or other action under any law relating to bankruptcy, insolvency, reorganization, or relief of debtors (a) seeking to have any order for relief of the APM Entities' debts, or seeking to adjudicate the APM Entities as bankrupt or insolvent; or (b) seeking appointment of a receiver, trustee, custodian, or other similar official for the APM Entities or for all or any substantial part of the APM Entities' assets, the APM Entities agree as follows:
(a) The APM Entities' obligations under this Agreement may not be avoided pursuant to 11 U.S.C. § 547, and the APM Entities shall not argue or otherwise take the position in any such case, proceeding, or action that: (i) the APM Entities' obligations under this Agreement may be avoided under 11 U.S.C. § 547; (ii) the APM Entities' obligations under this Agreement may be avoided because the APM Entities were insolvent at the time this Agreement was entered into, or became insolvent as a result of the payment made to the United States; or (iii) the mutual promises, covenants, and obligations set forth in this Agreement do not constitute a contemporaneous exchange for new value given to the APM Entities.
(b) If the APM Entities' obligations under this Agreement are avoided for any reason, including, but not limited to, through the exercise of a trustee's avoidance powers under the Bankruptcy Code, the United States and/or Wisconsin and/or Minnesota, at each one's sole option, may rescind the releases in this Agreement and bring any civil and/or administrative claim, action, or proceeding against the APM Entities for the claims that would otherwise be covered by the releases provided in Paragraphs 4, 5, 6, 7, and 8. In such event, the APM Entities agree that (i) any such claims, actions, or proceedings brought by the United States are not subject to an "automatic stay" pursuant to 11 U.S.C. § 362(a) as a result of the action, case, or proceedings described in the first clause of this Paragraph, and the APM Entities shall not argue or otherwise contend that the United States' and/or Wisconsin's and/or Minnesota's claims, actions, or proceedings are subject to an automatic stay; (ii) the APM Entities shall not plead, argue, or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any such civil or administrative claims, actions, or proceeding that are brought by the United States and/or Wisconsin and/or Minnesota within 60 calendar days of written notification to the APM Entities that the releases have been rescinded pursuant to this Paragraph, except to the extent such defenses were available on May 16, 2013; and (iii) the United States and/or Wisconsin and/or Minnesota has a valid claim against the APM Entities in the amount of $142 million and the United States and/or Wisconsin and/or Minnesota may pursue its claim in the case, action, or proceeding referenced in the first clause of this Paragraph, as well as in any other case, action, or proceeding.
(c) The APM Entities acknowledge that their agreements in this Paragraph are provided in exchange for valuable consideration provided in this Agreement.
21. Upon receipt of the payment described in Paragraph 1 above, the Parties shall promptly sign and file in the Civil Action a Joint Stipulation of Dismissal of the Civil Action pursuant to Rule 41(a)(1). Furthermore, such dismissal shall be:
(a) With prejudice as to the Relator, the United States, Minnesota, and Wisconsin with respect to the Covered Conduct, pursuant to and consistent with the terms and conditions of this Agreement.
(b) Without prejudice to the United States, Minnesota, and Wisconsin as to all other claims; and
(c) With prejudice as to the Relator as to all other claims.
22. Each Party shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of this Agreement.
23. Each party and signatory to this Agreement represents that it freely and voluntarily enters in to this Agreement without any degree of duress or compulsion.
24. This Agreement is governed by the laws of the United States. The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United States District Court for the Eastern District of Wisconsin. For purposes of construing this Agreement, this Agreement shall be deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed against any Party for that reason in any subsequent dispute.
25. This Agreement constitutes the complete agreement between the Parties. This Agreement may not be amended except by written consent of the Parties.
26. The undersigned counsel represent and warrant that they are fully authorized to execute this Agreement on behalf of the persons and entities indicated below.
27. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement.
28. This Agreement is binding on the APM Entities' successors, transferees, heirs,and assigns.
29. This Agreement is binding on Relator's successors, transferees, heirs, and assigns.
30. All parties consent to the United States', Wisconsin's, and Minnesota's disclosure of this Agreement, and information about this Agreement, to the public.
31. This Agreement is effective on the date of signature of the last signatory to the Agreement (Effective Date of this Agreement). Facsimiles and electronic transmissions of signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
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