SAN ANTONIO, Aug. 20, 2024 /PRNewswire/ — Two owners of durable medical equipment companies – Kuba Zarobkiewicz and Anthony Fermin – were found not guilty on August 19, 2024 of all criminal charges by a federal jury, the Chapman Law Group and the Law Office of Stephen Chahn Lee announced today.
“We are grateful to the jury for finally ending the government’s misguided prosecution of two business owners who tried to do the right thing,” said Stephen Lee, counsel for Anthony Fermin. “They were lied to and manipulated by other people, and we are grateful that the jury rejected the government’s attempt to hold them accountable for the crimes and mistakes of those other people. They were not perfect, but they were innocent.”
Mr. Zarobkiewicz and Mr. Fermin ran brace businesses through multiple companies beginning in 2020 and then voluntarily shut down the businesses in late 2021. They began cooperating with a law enforcement investigation in September 2022 and then were charged in December 2022 in the Western District of Texas even though they were still providing the government with information.
Mr. Zarobkiewicz and Mr. Fermin were charged with health care fraud, violations of the Anti-Kickback Statute, and conspiracy charges, along with a marketer who pled guilty and who testified for the government during the recent trial.
The marketer testified that he had lied to Mr. Zarobkiewicz and Mr. Fermin about the marketing activities that he was hired to perform. He admitted telling them that he was engaged in extensive online advertising, when he actually had used an overseas call center that caused improper cold calls to be made to Medicare beneficiaries.
The marketer also testified that he was paid on a per-patient basis, but the defense presented data showing that he was actually paid a flat-fee amount on a weekly basis. By the end of the government’s case-in-chief, even the FBI’s lead agent acknowledged that the evidence showed that the payments were not on a per-patient basis.
“This was one of the most aggressive cases involving the Anti-Kickback Statute that I’ve ever seen,” said Jonathan Meltz, counsel for Kuba Zarobkiewicz. “The government’s theory shows the dangers in letting prosecutors use such a broad, vague statute to prosecute cases that should have been handled civilly or administratively, not criminally.”
During the three-week trial, Zarobkiewicz and Fermin acknowledged that many claims were improperly billed while showing that they had relied on a biller who was not charged. Evidence showed that they were prepared to shut down the brace business twice in the summer of 2021 when they developed concerns about the advice given to them by the biller and that they only continued because of the biller’s reassurances. They shut down the business entirely in late 2021 after consulting with another biller and an attorney who was recommended by that biller.
The government’s evidence included an audit letter that the government suggested Mr. Zarobkiewicz and Mr. Fermin had ignored. At trial, Mr. Zarobkiewicz and Mr. Fermin showed that they never received the letter, in part through a certified-mail receipt that the government said was “impossible” to find but which Mr. Fermin’s wife found online.
The jury deliberated for one and a half days before returning a verdict of not guilty on all charges.
Mr. Zarobkiewicz and Mr. Fermin express their gratitude to members of the San Antonio community who supported them during this long ordeal.
“I’m extremely thankful to the jury for being fair and just,” Mr. Zarobkiewicz said. “The truth has come to light after an extremely difficult two years that changed our lives. We maintained our innocence since day one and now we can move on from this experience.”
“We have always sought to put our best foot forward in business and in life. The jury’s dedication to justice and truth has cleared our names and demonstrated the strength of integrity and perseverance,” Mr. Fermin said.
Mr. Meltz is a senior counsel with the Chapman Law Group in Miami, Florida. Mr. Lee is a former federal prosecutor and is a solo practitioner in Chicago, Illinois.
For further information, contact Stephen Lee at [email protected] or 312-436-1790.
SOURCE Law Office of Stephen Chahn Lee, LLC
