Should relators rejoice? The Supreme Court may have put to rest the vast uncertainty surrounding the applicable statute of limitations in False Claim Act (“FCA”) suits where the government declines to intervene with its recent ruling in Conchise v. U.S. ex rel. Hunt. After the Eleventh Circuit’s holding deepened an already existing circuit split as to applicable statute of limitations under the FCA, the Supreme Court granted certiorari. The Whistleblower Wire blog previously discussed the Eleventh Circuit’s holding here and the Supreme Court’s decision to grant certiorari here. In its May 13, 2019 opinion, the Court unanimously affirmed
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Hamilton v. Yavapai Community College District: District of Arizona Addresses FCA's State of Mind Requirement
By eplawecki
Hamilton v. Yavapai Community College District: District of Arizona Addresses FCA’s State of Mind Requirement
Participants in federal programs take note: the government’s specific representations that a program is compliant may help insulate you from False Claims Act liability. But, be wary of general guidance, which may not offer you the same protection.
Background: A Community College’s Compliance Efforts
Defendant Yavapai Community College (“Yavapai”) offered a flight training program, among other programs. When military veterans enrolled in the flight program, the Department of Veterans Affairs reimbursed Yavapai for the costs of the veterans’ coursework.
To obtain payment from the
Background: A Community College’s Compliance Efforts
Defendant Yavapai Community College (“Yavapai”) offered a flight training program, among other programs. When military veterans enrolled in the flight program, the Department of Veterans Affairs reimbursed Yavapai for the costs of the veterans’ coursework.
To obtain payment from the
EASTERN DISTRICT OF PENNSYLVANIA REJECTS GOVERNMENT’S USE OF “UNFETTERED DISCRETION” TO DISMISS QUI TAM ACTIONS
By eplawecki
EASTERN DISTRICT OF PENNSYLVANIA REJECTS GOVERNMENT’S USE OF “UNFETTERED DISCRETION” TO DISMISS QUI TAM ACTIONS
Recently, Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania said the government cannot simply exercise “unfettered discretion” to dismiss a qui tam action. See United States v. EMD Serono, Inc., CV 16-5594, 2019 WL 1468934 (E.D. Pa. Apr. 3, 2019). As a matter of first impression in the Third Circuit, the Eastern District of Pennsylvania joined the Ninth and Tenth Circuits in holding that the government’s dismissal of a qui tam action is appropriate only if the
New York State Department of Financial Services Issues Guidance on Whistleblowing Programs
By eplawecki
New York State Department of Financial Services Issues Guidance on Whistleblowing Programs
On January 7, 2019, the New York State Department of Financial Services (the “Department”) published Guidance on Whistleblowing Programs (the “Guidance”). The Guidance defines whistleblowing as “the reporting of information or concerns, by one or more individuals or entities, that are reasonably believed by such individual(s) or entity(s) to constitute illegality, fraud, unfair or unethical conduct, mismanagement, abuse of power, unsafe or dangerous activity, or other wrongful conduct, including, but not limited to, any conduct that may affect the safety, soundness, or reputation of the institution.” The Guidance
New Jersey Superior Court Says Doctor Is Entitled To His Share Of GSK Global Settlement
By eplawecki
New Jersey Superior Court Says Doctor Is Entitled To His Share Of GSK Global Settlement
On October 29, 2018, a three-judge panel in New Jersey’s Superior Court held the lower court improperly expanded a confidentiality provision in a deal among four relators. The court held that the plaintiff, Joseph Piacentile, had not breached the confidentiality provision in the agreement, entitling him to his share of a global settlement between the United States government and GlaxoSmithKline (GSK), as negotiated in the deal. The confidentiality provision prohibited Piacentile and/or his counsel from making certain comments regarding the other relators, however it did
Supreme Court Grants Certiorari On False Claims Act Limitations Period After Eleventh Circuit Deepened Circuit Split
By eplawecki
Supreme Court Grants Certiorari On False Claims Act Limitations Period After Eleventh Circuit Deepened Circuit Split
The U.S. Supreme Court recently granted cert to resolve a circuit split deepened by the Eleventh Circuit’s holding that the statute of limitations period for False Claims Act (FCA) suits runs from the date the government first learns of the alleged violations, whether or not the government intervenes. See United States of America ex rel. Billy Joe Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081 (11th Cir. 2018). We previously discussed the Eleventh Circuit decision on the Whistleblower Wire blog here.
The
The
Eleventh Circuit Holds Criminal Forfeiture Statutes Bar Qui Tam Relators From Intervening in Criminal Forfeiture Proceedings
By eplawecki
Eleventh Circuit Holds Criminal Forfeiture Statutes Bar Qui Tam Relators From Intervening in Criminal Forfeiture Proceedings
Under the “alternate remedy” provision of the False Claims Act (FCA), rather than intervene in a qui tam action, the government may elect to pursue claims “through any alternate remedy” available to determine a civil penalty. 31 U.S.C. § 3730(c)(5). The provision gives qui tam relators the same rights in the alternate proceeding they would have had if the action continued under the FCA. But what if the government elects to prosecute the fraud criminally instead of pursuing civil claims under the FCA? Does the alternate remedy provision
Third Circuit Says Public Disclosure Bar Does Not Stop FCA Suit Where Claim Was Dependent on Combination of Public and Non-Public Information
By eplawecki
Third Circuit Says Public Disclosure Bar Does Not Stop FCA Suit Where Claim Was Dependent on Combination of Public and Non-Public Information
On September 4, 2018, the Third Circuit revived a False Claims Act (FCA) suit against PharMerica Corporation that the District Court had dismissed based on the FCA’s public disclosure bar. The public disclosure bar provides that a “court shall dismiss an action or claim under this section …. if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed… unless… the person bringing the action is an original source of the information.”
Sixth and Tenth Circuits Rule that Medical Statements Are Capable of Falsehood Under the FCA
By eplawecki
Sixth and Tenth Circuits Rule that Medical Statements Are Capable of Falsehood Under the FCA
Two recent False Claims Act (FCA) decisions – United States v. Paulus, 894 F.3d 267 (6th Cir. 2018) and United States ex rel. Polukoff v. St. Mark’s Hospital, 895 F.3d 730 (10th Cir. 2018) – establish that an FCA claim can be based on a false exercise of medical judgment. In other words, opinions, medical judgments, and conclusions can be false for the purposes of an FCA claim. These holdings suggest that medical practitioners cannot rely solely upon a defense of “medical opinion”
Second Circuit Finds that Violations of the FCA’s First-to-File Bar Cannot Be Cured Through Amended Pleadings, Deepening Circuit Split
By eplawecki
Second Circuit Finds that Violations of the FCA’s First-to-File Bar Cannot Be Cured Through Amended Pleadings, Deepening Circuit Split
In August 2018, the U.S. Court of Appeals for the Second Circuit held that a violation of the False Claims Act (FCA) first-to-file bar cannot be cured by filing an amended complaint after the first-filed related action is no longer pending. The Court’s decision in United States ex rel. Wood v Allergan, Inc., which reversed a decision of the United States District Court for the Southern District of New York, deepens an already existing circuit split on this issue. Although
Medicare Fraud Strike Force Created in New Jersey and Pennsylvania to Combat Health Care Fraud and Opioid Abuse
By eplawecki
Medicare Fraud Strike Force Created in New Jersey and Pennsylvania to Combat Health Care Fraud and Opioid Abuse
In an effort to combat Medicare fraud and its contribution to the opioid crisis, the Justice Department’s Criminal Division, the U.S. Attorney’s Offices for the District of New Jersey and the Eastern District of Pennsylvania, as well as other U.S. law enforcement agencies, announced the creation of the Newark/Philadelphia Regional Medicare Fraud Strike Force on August 13, 2018. “According to the CDC,” said Assistant Attorney General Brian A. Benczkowski, “in 2016, more than 40 percent of all U.S. opioid overdose deaths involved
An Unusually Busy Summer for the CFTC Results in Record Whistleblower Awards Totaling over $75 million
By eplawecki
An Unusually Busy Summer for the CFTC Results in Record Whistleblower Awards Totaling over $75 million
This summer the Commodity Futures Trading Commission (CFTC) issued its first award since August 2016. On July 12, 2018, the CFTC announced a $30 million award, which was only the fifth award under the CFTC’s whistleblower program and the largest since the program’s creation in 2011. Just four days later, on July 16, the CFTC announced a sixth award of over $70,000, a comparatively paltry sum, but notable as the first instance of a CFTC award to a foreign whistleblower. Then, on
Supreme Court Declines to Resolve Burgeoning Split on First-to-File Rule in False Claims Act Cases
By eplawecki
Supreme Court Declines to Resolve Burgeoning Split on First-to-File Rule in False Claims Act Cases
Last month, the U.S. Supreme Court denied certiorari in a case concerning the “first-to-file” bar under the False Claims Act. The issue arose in a long-running case we previously covered in March 2014, August 2014, January 2015, and May 2015. The key question the Court declined to address was whether a relator must re-file a complaint after resolution of a prior action that would have barred the relator’s claim. Although the Court will not address the question in this case, the
Sixth Circuit Reverses Dismissal of FCA Claim for Second Time, Finding Timeliness of Physician Certifications for Home Health Care Material to Medicare Payment Decisions
By eplawecki
Sixth Circuit Reverses Dismissal of FCA Claim for Second Time, Finding Timeliness of Physician Certifications for Home Health Care Material to Medicare Payment Decisions
The Sixth Circuit recently reversed the dismissal of a qui tam relator’s complaint under the False Claims Act (“FCA”), holding that the defendant’s claims presented to the government contained material omissions. See U.S. ex rel. Prather v. Brookdale Senior Living Communities, Inc., et al., No. 17-5826 (6th Cir. 2018). The issue arose from the defendant home health care provider’s failure to timely submit physician certifications required for Medicare reimbursement. The Sixth Circuit concluded—disagreeing with the
Third Circuit Clarifies Definition of “Report” in the Emergency Medical Treatment and Active Labor Act’s Whistleblower Protection Provision
By eplawecki
Third Circuit Clarifies Definition of “Report” in the Emergency Medical Treatment and Active Labor Act’s Whistleblower Protection Provision
In Gillispie v. RegionalCare Hospital Partners, Inc., No. 16-4307, 2018 WL 2926041 (3d Cir. June 12, 2018), the Third Circuit recently concluded that the plaintiff had not made a cognizable “report” within the meaning of the whistleblower protections provision of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. While rejecting the lower court’s conclusion that a “report” necessarily required notification to a governmental authority, the Third Circuit ultimately affirmed the award of summary judgment to the
Lance Armstrong Settles with DOJ in a Novel Application of the False Claims Act Targeting Misconduct in Sports
By eplawecki
Lance Armstrong Settles with DOJ in a Novel Application of the False Claims Act Targeting Misconduct in Sports
On April 19, 2018, the Department of Justice announced its settlement with Lance Armstrong to resolve its False Claims Act (“FCA”) suit for Armstrong’s admitted use of illegal performance-enhancing drugs while under sponsorship by the U.S. Postal Service. Armstrong agreed to pay $5 million, of which $1.1 million will go to the qui tam suit’s relator, Armstrong’s former teammate Floyd Landis. In addition to the $5 million, Armstrong has also agreed to pay Landis’s $1.65 million in legal fees.
Much of the
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