Supreme Court Extends the FCA Statute of Limitations for Whistleblowers

Posted on April 7, 2020 in FCA, Statute of Limitations

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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 resolved a circuit split that had dogged the courts, whistleblowers and defendants for decades. Health... Continue Reading →

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

Posted on April 7, 2020 in FCA

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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., the D.C.... Continue Reading →

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Second Circuit Affirms Dismissal of Piggybacked FCA Complaint

Posted on April 7, 2020 in FCA, Government Intervention, Original Source

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Earlier this week, the Second Circuit in Vierczhalek v. MedImmune, Inc.[1] affirmed the dismissal of a relator’s amended complaint, finding she was not an “original source” of new allegations that piggybacked on a public disclosure. Facts of the Case Relator Susan Vierczhalek, M.D., filed a qui tam action in 2009 alleging that drug manufacturer... Continue Reading →

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One Is Not Enough: Court Clarifies Whistleblower’s Burden in High Volume FCA Action

Posted on April 7, 2020 in FCA

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The Southern District of Indiana recently held that a whistleblower must present sufficient evidence to support each alleged false claim, not just one, to survive summary judgment.[1] This holding is a win for FCA defendants that deal in a high volume of claims submitted to the government—like hospitals—and requires whistleblowers to identify... Continue Reading →

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Ninth Circuit Shuts Down “Objective Falsehood” Pleading Requirement Under the FCA

Posted on April 7, 2020 in Uncategorized

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An accepted doctrine of FCA pleading requires whistleblowers or the Government to assert an “objective falsehood” in their complaints. Last week, the Ninth Circuit nixed the requirement. The Ninth Circuit reversed a district court’s dismissal tied to a failure to plead an objective falsehood under FCA. The Court held that... Continue Reading →

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

Posted on April 7, 2020 in FCA, Rule 9(b)

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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... Continue Reading →

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Critical Considerations of Implied Certification Under the FCA

Posted on April 7, 2020 in False Certification, FCA, Materiality

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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... Continue Reading →

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Federal Court Reinforces Government’s Right to Dismiss FCA Actions over Whistleblower Objection

Posted on October 3, 2019 in FCA, Government Intervention

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The Eastern District of Texas affirmed the Government’s right to dismiss FCA actions over a whistleblower’s objections. The Court joined held that the Government may dismiss claims to avoid the costs of extended litigation. The United States Declined to Intervene Health Choice Alliance, LLC filed an FCA action alleging that... Continue Reading →

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

Posted on December 27, 2018 in Anti-Kickback Statute, FCA, Government Intervention, Pharmacy, Qui Tam

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The DOJ plans to dismiss eleven 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 eleven cases were essentially... Continue Reading →

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