Articles and Blogs

False Claims Act Defense

E.D. Wisconsin: Boilerplate Defenses Insufficient; Challenges Wasteful

[07/31/19]

Posted on July 31, 2019 in False Claims Act Defense

Published by: Hall Render

Litigators and litigants should always be wary of templates, unconsidered boilerplate pleadings—and unnecessary motion practice. Last week, a federal court in Wisconsin struck boilerplate affirmative defenses that lacked “short and plain statement of the facts and…the necessary elements of the defenses.”[1] The ruling reinforced the Seventh Circuit’s standards for affirmative defenses—even though the judge... READ MORE

Tags: , , , ,

Greed and Creative Pleading: A Formula for Dismissal Under the FCA

[07/11/19]

Posted on July 11, 2019 in False Claims Act Defense

Published by: Hall Render

On July 5, 2019, the United States Court of Appeals, District of Columbia Circuit issued an opinion enforcing Supreme Court precedent that the False Claims Act (“FCA”) should be reserved for true fraud against the government—not “garden-variety regulatory violations.” In U.S. ex rel. Kasowitz Benson Torres LLP v. BASF Corp.,[1] the D.C. Circuit reviewed... READ MORE

Tags: , , ,

Supreme Court Extends the FCA Statute of Limitations for Whistleblowers

[05/20/19]

Posted on May 20, 2019 in False Claims Act Defense

Published by: Hall Render

This week, the United States Supreme Court ruled that the government’s 10-year deadline to file FCA actions could be extended to whistleblowers. The Court’s decision in Cochise Consultancy, Inc. et al. v. United States ex rel. Hunt[1] resolved a circuit split that had dogged the courts, whistleblowers and defendants for decades. Health care providers... READ MORE

Tags: , , ,

DOJ Self-Disclosure and Cooperation Credit

[05/17/19]

Posted on May 17, 2019 in False Claims Act Defense

Published by: Hall Render

The DOJ’s recent revisions to its Justice Manual created a new path for self-disclosing potential fraud to the government – one which is unique in its ability to defray the costs of potential False Claims Act violations. In 2015, Deputy Attorney General Sally Quillian Yates released a memo entitled Individual Accountability for Corporate Wrongdoing, more... READ MORE

Tags: , , , , ,

Civil Investigative Demands: Broad, Unfair and Legal

[05/10/19]

Posted on May 10, 2019 in False Claims Act Defense

Published by: Hall Render

The U.S. government’s unilateral investigative powers under the False Claims Act were bolstered by a ruling from the U.S. District Court for the Eastern District of California last week. Ruling on a Petition for Summary Enforcement of a Civil Investigative Demand (“CID”), the court held: Settlement discussions with a person or entity involved in... READ MORE

Tags: , , ,

Critical Considerations of Implied Certification Under the FCA

[04/04/19]

Posted on April 4, 2019 in False Claims Act Defense

Published by: Hall Render

In a recent case out of Kansas, the Tenth Circuit reiterated the importance of the FCA’s materiality and scienter requirements that the Supreme Court set forth in Escobar: FCA claims must satisfy materiality and knowledge requirements—both of which are rigorous and strictly enforced. A whistleblower must prove knowledge in an implied certification case—it cannot... READ MORE

Tags: , , , , , ,

A Closer Look at the FCA’s Particularity and Retaliation Requirements

[02/08/19]

Posted on February 8, 2019 in False Claims Act Defense

Published by: Hall Render

In a partial affirmation, the Fourth Circuit weeded out False Claims Act (“FCA”) claims made without particularity, requiring relators to “connect the dots” between the alleged false claims and government payment and highlighted the FCA’s recently amended “objective reasonableness” standard in reviewing retaliation claims. Background In 2010, the FCA was amended to include any... READ MORE

Tags: , , , , ,

The Granston Memo’s Effect: The DOJ Is Dismissing Meritless and Frivolous Actions

[12/27/18]

Posted on December 27, 2018 in False Claims Act Defense

Published by: Hall Render

The DOJ plans to dismiss 11 FCA lawsuits involving the new theory that patient assistance services supplied by drugmakers are unlawful kickbacks.¹ These lawsuits were brought by shell company whistleblowers backed by the National Healthcare Analysis Group (“NHCA”), a company that specializes in generating FCA cases. The 11 cases were essentially the same complaints with a different... READ MORE

Tags: , , , , ,

When a Deadline Isn’t a Deadline: Fifth Circuit Rules FCA Appeal Deadlines Turn on Government’s Intervention

[10/31/18]

Posted on October 31, 2018 in False Claims Act Defense

Published by: Hall Render

Joining the other circuit courts, the Fifth Circuit extends the time to appeal a civil case if the United States was a party. As long as the United States was actively involved in the case prior to the appeal, any party has 60 days to appeal. Background In United States v. Ronald Conner, [1]... READ MORE

Tags: , , ,

Whistleblower’s Dismissal with Prejudice Not the End of the Road for Qui Tam Action

[10/30/18]

Posted on October 30, 2018 in False Claims Act Defense

Published by: Hall Render

The Fifth Circuit ruled that a whistleblower’s voluntary dismissal with prejudice cannot affect the Government’s ability to pursue related litigation. When the Government has not yet intervened, and thus is not a yet a party, a case cannot be dismissed with prejudice as to the Government by a whistleblower. Background In Vaughn, ex rel.... READ MORE

Tags: , , , , , , , , , ,