Articles and Blogs

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

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

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

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

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

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

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

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

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

The Eleventh Circuit recently held that a qui tam relator cannot intervene in criminal forfeiture proceedings when the Government chooses to criminally prosecute fraud rather than intervene in a qui tam action. In United States v. Couch,[1] a former employee (“Relator”) of a pain management clinic in Alabama tried to recover amounts she believed... READ MORE