Supreme Court Extends the FCA Statute of Limitations for Whistleblowers

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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

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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

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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

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

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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

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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

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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

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

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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... Continue Reading →

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