Retained Overpayments Change the FCA Ball Game

— False Claims Act defense attorneys have been warning government contractors, particularly Medicare and Medicaid providers, of increased risks and a reduced ability to defend against whistleblower complaints since the passage of the Fraud Enforcement Recovery Act of 2009 (“FERA”). The greatest risk comes from FERA’s addition of a new... Continue Reading →

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Sixth Circuit: Violations of Conditions of Participation Insufficient Basis for FCA Claims

By David B. Honig and Andrew B. Howk In U.S. v. MedQuest, the Sixth Circuit held that violations by a provider of conditions of participation in Medicare were insufficient as a matter of law to “trigger the hefty fines and penalties created by the FCA.” This case was a reaffirmation... Continue Reading →

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OIG Issues New Guidelines for Review of State FCA Statutes

The recent amendments to the False Claims Act, the Fraud Enforcement Recovery Act of 2009 (“FERA”), the Patient Protection and Affordable Care Act of 2010 (“PPACA”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) continue to generate new rules and guidance. Effective 2007, Congress created incentives for states to pass... Continue Reading →

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False Claims Act Update

Appellate Court Cases Three appellate-level FCA cases were reported in January and February 2013. Only one, U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America, Inc., 1 was selected for publication. All three cases addressed Rule 9(b)’s requirement that allegations of fraud be lead “with particularity.” The cases, read together,... Continue Reading →

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FCA – ACA = ?

This Thursday, June 28, 2012, the United States Supreme Court will decide the fate of the Patient Protection and Affordable Care Act, aka “Obamacare.” In so doing, it may also make significant changes in one of the newest and most complicated amendments the False Claims Act, with results that are... Continue Reading →

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U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc.

290 F.3d 1301, (11th Cir. 2002). To adequately plead a False Claims Act case under Fed.R.Civ.P. 9(b), a whistleblower may not merely plead a scheme to defraud. Rather, they whistleblower must plead and identify actual claims which are false. For more information, please contact David B. Honig at or... Continue Reading →

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Do whistleblowers have to plead with particularity for every claim?

Pleading a False Claims Act case can be a tricky exercise, and in defending an FCA case, it is important to know just what the rules are for a whistleblower, and how they can fail to meet them. One of the most common mistakes made by whistleblowers is failing to “plead fraud... Continue Reading →

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United States ex rel. Lusby v. Rolls-Royce Corp.

570 F.3d 849, 844 (7th Cir. 2009). The Court of Appeals ruled that a whistleblower met Fed.R.Civ.P. 9(b)’s requirement to plead fraud “with particularity,” even where he did not produce actual invoices submitted to the government, where the contract required submission of invoices and the whistleblower alleged false certification of compliance... Continue Reading →

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