Category: Privilege

The FCA, Advice of Counsel Defense and CMS Commentary Meets the Jury

A recent court decision had highlighted two issues on the cutting edge of health care and False Claims Act (“FCA”) law. Both address what happens in the transition from health care advice to health care litigation. The first is the application of the attorney client privilege and the advice of counsel defense. The second is the application of CMS advisory opinions beyond the regulatory sphere and in the courtroom. Continue Reading →

Last Week in the FCA

From October 1 through October 12, 2014, there were 14 federal cases reported that mentioned the False Claims Act. One was previously discussed in the September 2014 FCA Update. Eight more only tangentially discussed the False Claims Act.

Five cases might be of interest to parties and counsel in a False Claims Act suit. US ex rel. May v. Purdue Pharma L.P. was the most interesting case. Defendants were permitted to depose relators’ attorneys, who represented an earlier relator in a dismissed FCA case on the same issues, to explore relators knowledge in a public disclosure challenge.

In US ex rel. Cestra v. Cephalon, Inc., a jurisdiction challenge based upon the first-to-file bar, the court stated that the complaint to be used for comparison was the second relator’s original complaint, not any subsequently amended complaints.

Two cases, US ex rel. Kelly v. Serco, Inc. and US ex rel. Smith v. Boeing Co., reiterated the oft-stated rule that the FCA is not to be used for regulatory compliance. In Boeing, the court went a step further, noting that the FAA had expertise, remedial powers and congressional oversight, and where it had opined on the regulatory question, the court could consider same in ruling on a motion for summary judgment.

In the final case, U.S. ex rel. Graves v. Plaza Medical Centers Corp., the court dismissed claims that failed to plead specific claims against all individual defendants without prejudice and dismissed a conspiracy allegation that failed to allege an agreement among defendants with prejudice.

If you have any questions or would like more information on this topic, please contact David B. Honig at (317) 977-1447 or or your regular Hall Render attorney.

D.C. Circuit: Compliance Investigations Are Privileged


Yesterday, the D.C. Circuit issued a much-anticipated decision regarding whether or not internal compliance investigations were privileged. Two recent lower court decisions had ruled that such compliance investigations were not privileged because they were for business rather than legal purposes. The D.C. Circuit disagreed and found that such compliance investigations are for legal purposes and fall squarely under the attorney-client privilege.

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FCA Defendant’s Counterclaim for Breach of Confidentiality Agreement Proceeds

Last week, the District Court of the Eastern District of Pennsylvania ruled that defendants in a False Claims Act case may bring a cause of action against the Relator for breach of a confidentiality agreement. Though such causes of action have been disfavored by other courts, this ruling paves a path for government contractors and healthcare providers to strengthen the potential enforcement of confidentiality agreements.

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