Last term, in U.S. ex rel. Polansky v. Exec. Health Res., Inc., three Justices noted that there are “substantial arguments” that the False Claims Act’s (FCA) qui tam provisions do not conform with Article II of the...more
- The Department of Justice (DOJ) will focus its civil enforcement activity on fraud and other illegal actions relating to COVID-19, including with respect to CARES Act stimulus programs and consumer products marketed for use...more
7/6/2020
/ CARES Act ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Department of Justice (DOJ) ,
Enforcement Actions ,
False Claims Act (FCA) ,
Fraud ,
Main Street Lending Programs ,
Paycheck Protection Program (PPP) ,
Private Equity Firms ,
Qui Tam
- The government has pledged to prioritize investigations and prosecutions regarding alleged frauds related to coronavirus programs.
- The False Claims Act is the government’s primary enforcement tool to prosecute alleged...more
Key Points:
- False Claims Act plaintiff cannot use discovery to satisfy Fed. R. Civ. P. 9(b).
- Payment of fair market value is a dispositive defense in FCA actions alleging a violation of the Anti-Kickback...more
1/28/2020
/ Anti-Kickback Statute ,
Centers for Medicare & Medicaid Services (CMS) ,
Discovery ,
False Claims Act (FCA) ,
Federal Rules of Civil Procedure ,
FRCP 9(b) ,
Health Care Providers ,
Medicaid ,
Medicare ,
Qui Tam ,
Relators ,
Rulemaking Process ,
Stark Law ,
Whistleblowers
• Reasonable disagreement among clinicians, by itself, does not result in a false claim.
• Clinical judgment must be objectively false to constitute an FCA violation.
• A clinical judgment may only be objectively false...more
10/11/2019
/ Billing ,
False Billing ,
False Claims Act (FCA) ,
Federal Contractors ,
Guilty Pleas ,
Health Care Providers ,
Healthcare Fraud ,
Hospice ,
Jury Instructions ,
Medicare ,
Overpayment ,
Physicians ,
Qui Tam ,
Relators ,
Scienter
• Escobar doctrinally and conceptually transformed the FCA.
• Relators and the government have developed strategies to neutralize Escobar.
• Defendants must avoid certain new traps that could enhance their exposure to...more
6/24/2019
/ Department of Justice (DOJ) ,
Dismissals ,
Enforcement Actions ,
False Claims Act (FCA) ,
Fraud and Abuse ,
Government Agencies ,
Health Care Providers ,
Healthcare Fraud ,
Qui Tam ,
Relators ,
The Granston Memo ,
Universal Health Services Inc v United States ex rel Escobar
• DOJ is implementing the Granston memo policy in seeking dismissal of FCA qui tam actions when it is in the government’s interest, particularly when protecting its resources, discretion and litigation priorities.
• DOJ...more
10/22/2018
/ BEA ,
Cooperative Agreements ,
Department of Energy (DOE) ,
Department of Justice (DOJ) ,
Dismissals ,
Energy Sector ,
False Claims Act (FCA) ,
Federal Contractors ,
Intellectual Property Protection ,
Inventions ,
Nuclear Power ,
Patent Applications ,
Patents ,
Proprietary Information ,
Qui Tam ,
Research and Development
• In an unusual move, the government has decided to pursue a False Claims Act (FCA) suit against a private equity firm based on an alleged commission scheme at its pharmacy portfolio company to promote sales of products...more
3/22/2018
/ Anti-Kickback Statute ,
Civil Monetary Penalty ,
Drug Compounding ,
Due Diligence ,
False Claims Act (FCA) ,
Federal Funding ,
Fraud and Abuse ,
Health Care Providers ,
Healthcare Fraud ,
Investors ,
Medical Reimbursement ,
Patients ,
Pharmaceutical Industry ,
Pharmacies ,
Portfolio Companies ,
Prescription Drugs ,
Private Equity Firms ,
Qui Tam ,
Risk Mitigation ,
Treble Damages ,
TRICARE
• Under the FCA there are multiple circuit court splits related to how power should be allocated between the United States and the relator and whether the relator has contributed sufficient value to merit obtaining a...more
2/13/2018
/ Amended Complaints ,
Department of Justice (DOJ) ,
Dismissals ,
False Claims Act (FCA) ,
First-to-File ,
FRCP 9(b) ,
Frivolous Lawsuits ,
Judgment on the Merits ,
Motion to Dismiss ,
Public Disclosure ,
Qui Tam ,
Relators ,
Split of Authority ,
Statute of Limitations ,
Tolling
• Department of Justice (DOJ) has released a memorandum detailing seven nonexhaustive factors to be considered by its attorneys in making the important determination of whether to dismiss False Claims Act (FCA) qui tam...more
• How have appellate courts applied the Supreme Court’s ruling in Escobar?
• If the government is aware of the relator’s allegation, but does not undertake any administrative action to address the defendant’s alleged...more
10/11/2017
/ ANSI ,
Centers for Medicare & Medicaid Services (CMS) ,
DCAA ,
Department of Justice (DOJ) ,
Department of the Interior ,
False Claims Act (FCA) ,
Food and Drug Administration (FDA) ,
Genentech ,
Government Agencies ,
Materiality ,
Medical Devices ,
Qui Tam ,
Relators ,
Side Effects ,
Universal Health Services Inc v United States ex rel Escobar ,
Warning Labels