Top False Claims Act Developments

2022

October 27– Jeffrey Bucholtz, Tamra Moore & Matthew Noller

1. Supreme Court denies review of three cases addressing application of Fed. R. Civ. P. 9(b) to qui tam cases
2. Second Circuit affirms dismissal of qui tam complaint for failure to plead materiality
3. Chamber files coalition amicus brief in Supreme Court arguing for deferential standard of review of government motions to dismiss qui tam actions

October 13  – Jeffrey Bucholtz, Jamie Lang & Matthew Noller

1. Federal district courts in the Eleventh Circuit dismiss two qui tam actions under Fed. R. Civ. P. 9(b)
2. New York federal district court denies motion to dismiss, for lack of materiality, government’s FCA action against Medicare Part C health insurance plan sponsor

September 29  – Jeffrey Bucholtz, Amy Boring, Matthew Noller

1. D.C. Circuit holds that the government cannot recover more than its claimed damages in an FCA suit against multiple defendants
2. Tenth Circuit affirms dismissal of qui tam action for failure to plead submission of false claims
3. En banc Fourth Circuit deadlocks over scienter standard for FCA claims
4. Government creates COVID-19 fraud “Strike Force” teams

September 15  – Ethan Davis, Tamra Moore, Matthew Noller

1. Eleventh Circuit affirms dismissal of FCA retaliation claim for failure to plead FCA violation
2. Solicitor General again recommends denial of certiorari petition in FCA case raising Rule 9(b) issues
3. Government settles FCA actions related to violations of country-of-origin statutes

September 1  – Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. Ninth Circuit holds that information disclosed in patent prosecutions triggers the FCA’s public-disclosure bar
2. Supreme Court invites Solicitor General to express views on certiorari petition addressing FCA’s scienter requirement
3. Missouri federal district court dismisses qui tam lawsuit

August 18 – Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. Ninth Circuit reverses grant of summary judgment to defendant in qui tam action
2. Tennessee federal district court interprets “good cause” standard for allowing late government intervention in qui tam actions
3. Relator files petition for certiorari seeking Supreme Court review of FCA scienter standard

August 4 – Jeff Bucholtz, Tamra Moore, Matthew Noller

1. Second and Eighth Circuits issue important decisions interpreting the AKS and FCA
2. Fourth and Seventh Circuits affirm dismissals of qui tam actions under Rule 9(b)
3. Biotechnology company settles qui tam lawsuit for $900 million

July 21 – Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. HHS and DOJ announce more than $5.0 billion in healthcare fraud recoveries in FY 2021
2. Georgia federal district court denies motion to dismiss qui tam action

July 7  – Jeff Bucholtz, Tamra Moore, Yelena Kotlarsky

1. Fourth Circuit affirms dismissal of qui tam action on Rule 9(b) and materiality grounds
2. D. Cal. dismisses claims from FCA suit based on public disclosure bar, first-to-file bar, and rule of civil procedure that requires clarity in complaints

June 23 – Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. Supreme Court Agrees to Decide Standard for Reviewing Government Requests to Dismiss qui tam suits
2. Mississippi federal district court denies qui tam relator a share of the government’s recovery in separate criminal proceedings
3. The government files a lawsuit and announces settlements of FCA claims related to alleged healthcare fraud

June 9 – Jeff Bucholtz, Tamra Moore, Matthew Noller

1. Puerto Rico federal court holds that the United States cannot sue a Puerto Rico government agency under FCA
2. Fourth Circuit affirms grant of summary judgment to FCA defendant on scienter grounds

May 26 – Ethan Davis, Tamra Moore, Matthew Noller

1. Sixth Circuit reverses dismissal of qui tam fraudulent inducement action against NASA contractor
2. C. Circuit reverses dismissal of qui tam action under government-action bar
3. Fourth Circuit grants rehearing en banc of decision applying Safeco scienter standard to FCA actions
4. Solicitor General recommends denial of certiorari petition in FCA case raising Rule 9(b) issues

May 12 – Jeff Bucholtz, Tamra Moore, Matthew Noller

1. Qui tam suit alleging violations of cybersecurity regulations settles
2. Mississippi federal court dismisses qui tam action under first-to-file bar
3. Federal courts in Missouri and New Jersey dismiss qui tam actions under Rule 9(b)

April 28 – Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. Ohio federal court holds that Rule 9(b) requires relators to identify specific false claims connected to each defendant in multi-defendant actions
2. DOJ settles FCA claims against healthcare company based on allegations of unnecessary testing, improper doctor compensation, and COVID-19 relief fraud
3. DOJ settles FCA and kickback allegations with anesthesia companies
4. New York state court denies motion to dismiss state-law qui tam action against telephone companies

April 14 – Jeff Bucholtz, Jamie Allyson Lang, Matthew Noller

1. Seventh Circuit affirms summary judgment in favor of FCA defendant based on application of Safeco scienter test
2. Eleventh Circuit affirms dismissal of qui tam action under first-to-file bar
3. New Jersey federal court dismisses qui tam action alleging misbranding of prescription drugs

March 31– Ethan Davis, Jamie Allyson Lang, Matthew Noller

1. Tennessee federal court mostly denies motion to dismiss government’s FCA claims involving hospice billing
2. Georgia federal court grants in part and denies in part motion to dismiss qui tam action against telecommunications companies

March 17 – Jeff Bucholtz, Tamra Moore, Jamie Allyson Lang, Matthew Noller

1. USDA proposes rule requiring government contractors to certify under the FCA that they, their subcontractors, and their suppliers comply with labor laws
2. DOJ announces settlement of first cyber-fraud case under Department’s Civil Cyber-Fraud Initiative
3. Massachusetts federal court denies attorney’s fees to relators under first-to-file bar

March 3 – Ethan Davis, Tamra Moore, Matthew Noller

1. Company agrees to pay record settlement amount relating to claims that it accepted government contracts intended for small businesses owned by service-disabled veterans
2. Department of Justice settles FCA claim related to improper Paycheck Protection Program loan
3. New York federal court dismisses qui tam complaint under Rule 9(b)

February 17 – Jeff Bucholtz, Tamra Moore, Matthew Noller

1. Department of Justice announces $5.6 billion in FCA recoveries in FY 2021
2. Department of Justice announces settlements of healthcare fraud claims
3. Ninth Circuit reverses dismissal of qui tam action under public-disclosure bar
4. Managed care organization files petition for certiorari seeking Supreme Court review of Seventh Circuit decision raising questions concerning Fed. R. Civ. P. 9(b) and the scope of implied certification theories of FCA liability

February 3 – Jeff Bucholtz, Tamra Moore, Matthew Noller

1. Fourth Circuit affirms dismissal of FCA suit based on application of the Safeco scienter test
2. First Circuit adopts deferential standard to assess government motions to dismiss relators’ qui tam actions
3. Sixth Circuit holds that the FCA’s “first-to-file” and “public-disclosure” rules do not preclude relators’ request for attorneys’ fees following the parties’ global settlement

January 20 – Ethan Davis, Amy Boring, Kassi Conley

1. Supreme Court invites Solicitor General to express views on certiorari petition in FCA case raising Rule 9(b) issues
2. Ninth Circuit overturns attorneys’ fee award against relator
3. DOJ settles another FCA case focused on combatting fraud against servicemembers

January 6 – Jeff Bucholtz, Maggie Thomas, Jacqueline Van De Velde

1. Eleventh Circuit Holds that Eighth Amendment’s Excessive Fines Clause Applies in Declined Qui tam Actions
2. DOJ Continues Focus on Combatting Fraud Against Servicemembers
3. DOJ Continues Opioid-Related Enforcement Efforts Against Pharmacies and Pharmacists

2021

December 16 – Ethan Davis, William McClintock, Mark Villapando

1. Second Circuit holds that the FCA’s materiality requirement extends to claims alleged to be “factually false” or false by virtue of an express certification
2. Contractor resolves allegations that it caused Vermont to submit false claims to the Federal Highway Administration
3. DOJ takes into account subsequent remedial measures in FCA resolution with home health agency
4. DOJ continues Anti-Kickback Statute enforcement efforts against relationships between pain management clinics, laboratories, and pharmacies
5. S. District Court for the Western District of Virginia holds that alleged fraud regarding medical drug coverage restrictions was not material

November 23 – Jeff Bucholtz, Ethan Davis, Amy Boring, Hamilton Craig

1. DOJ continues opioid-related enforcement efforts under the FCA
2. DOJ deploys the AKS against another medical device company
3. DOJ files FCA complaint against Professional Compounding Centers of America Inc. alleging fraudulent reporting of pricing information for drug ingredients
4. Archdiocese of New Orleans agrees to pay more than $1 million to resolve Hurricane Katrina-related FCA allegations

November 11 – Michael Paulhus, Isabella Wood, Maggie Thomas

1. The Third Circuit Weighs in on Government Dismissals of Qui tam Actions
2. Senate Judiciary Committee Votes to Approve FCA Amendments, Sends S. 2428 to the Senate for Vote
3. DOJ Accuses Kaiser of $1B Medicare Fraud, Unsupported Diagnoses
4. Court Rules Utah Relator Owes Attorneys’ Fees for Harassing Behavior

October 28 – Seth Lundy, Amy Boring, Katie Harris

1. District Court orders whistleblower to show cause as to why he is entitled to treble damages and significant penalties
2. DOJ announces the Civil Cyber-Fraud Initiative, which will use the FCA to pursue cybersecurity-related fraud by government contractors and grant recipients
3. Manufacturer of industrial products used in U.S. Navy ships agrees to pay $4.5 million to resolve FCA allegations
4. Potential for expanded downstream FCA liability

October 7 – Jeff Bucholtz, William McClintock, Isabella Wood

1. Principal Deputy Inspector General Emphasizes Enforcement Focus Related to Nursing Homes and COVID-19 Relief Funds
2. DOJ Intervenes in Medicare Advantage FCA Action Alleging Unsupported Diagnoses
3. Healthcare Marketing Company Co-Founder Seeks Supreme Court Review of $114 Million FCA Judgment
4. Alabama Jury Returns Verdict Against Defense Contractor after FCA Trial

September 23 – Ethan Davis, Yelena Kotlarsky, Evan Ennis

1. DOJ’s Continued Focus On FCA Cases Involving Medicare Part C
2. DOJ’s Expanding Focus on Telemedicine Fraud
3. Molina Healthcare Petitions Seventh Circuit for Rehearing En Banc In Post-Escobar Case

September 9 – Paul Murphy, Amy Boring, William McClintock

1. Sutter Health False Claims Settlement Reflects DOJ’s Continued Focus on Medicare Part C Enforcement
2. Bankrupt Mental Health Clinic Operator Agrees to $15 Million Consent Judgments to Resolve False Claims Act and Controlled Substances Act Claims
3. Continued FCA Enforcement Against Alleged CARES Act-Related Fraud
4. Delaware Court Requires Insurer to Advance Cost for False Claims Act Civil Investigative Demand Defense

August 26 – Craig Carpenito, Yelena Kotlarsky, Alex Blumberg

1. C. Circuit Reinstates Vacated Medicare Part C Overpayment Rule
2. Seventh Circuit Extends Safeco’s Scienter Requirement to FCA
3. Tensions with DOJ Continue Regarding Discovery Allegedly Aimed at Extracting (c)(2)(A) Dismissals

August 12 – John Richter, Amy Boring, Christina Kung

1. FDA Issues Final Rule to Amend Medical Product “Intended Use” Regulations
2. DOJ’s Recent Activity in FCA Cases Involving Medicare Part C
3. Fifth Circuit Upholds Privilege in Face of Government’s “Callous Disregard”
4. Expanding FCA Risks in Private Equity Space
5. Government’s Aggressive Theory of Reverse FCA Liability

July 29 – Jeff Bucholtz, Ethan Davis, Jamie Lang, Yelena Kotlarsky

1. Senator Grassley introduces bipartisan legislation to change the application of the FCA’s materiality standard, make it more difficult for DOJ to dismiss qui tam suits, and bolster the government’s ability to recover on smaller claims
2. DOJ objects to discovery allegedly aimed at extracting (c)(2)(A) dismissals
3. FCA COVID-19 Provider Relief Fund enforcement on the horizon
4. The government wins in the Ninth Circuit in an important dispute over the validity of local Medicare coverage determinations, which has significant implications for FCA claims based on such determinations

July 15 – Jeff Bucholtz, Ethan Davis, Jamie Lang, Amy Boring

1. Fifth Circuit Affirms DOJ Dismissal
2. DOJ Increases FCA Enforcement Efforts against Skilled Nursing Facilities as Pandemic Recedes
3. C. Circuit: But-for Causation Necessary for Fraudulent Inducement Claims
4. Separation of Powers and Fraudulent Inducement Under the FCA

May 25 – Jeff Bucholtz, Jeremy Bylund

1. Stats Without Facts: Another Court Rejects Data Mining Qui tam Strategy