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# FCA NOW

Insights and Updates on the False Claims Act from Dorsey & Whitney

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## Posts

- [Is There FCA Risk in Your Public Data? DOJ Launches the “FOCUS” Initiative, Formalizing Engagement with Data Miner Relators](https://www.dorseyfca.com/is-there-fca-risk-in-your-public-data-doj-launches-the-focus-initiative-formalizing-engagement-with-data-miner-relators/) - The U.S. Department of Justice’s (the “Department”) Civil Division recently announced a new anti-fraud initiative dubbed the Fraud Oversight through Careful Use of Statistics (FOCUS) initiative. FOCUS is designed to formalize the Department’s engagement with so-called “data miner” relators who file qui tam complaints under the False Claims Act (FCA). The announcement signals the Department’s intent to both leverage
- [Ninth Circuit Permits 340B Program Enforcement Under the FCA](https://www.dorseyfca.com/ninth-circuit-permits-340b-program-enforcement-under-the-fca/) - Insights and Updates on the False Claims Act from Dorsey & Whitney
- [FCA Basics: Government Investigations and Self-Disclosure](https://www.dorseyfca.com/fca-government-investigations/) - This is the sixth post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure and highlighting key facets of FCA practice. Today’s post discusses pre-litigation matters: government investigations and voluntary self-disclosure of violations. FCA Investigations There are a few different ways the government finds
- [DOJ Doubles Down on Antidiscrimination FCA Claims, Identifies Problematic Practices](https://www.dorseyfca.com/doj-doubles-down-on-antidiscrimination-fca-claims-identifies-problematic-practices/) - Deputy Assistant Attorney General Brenna Jenny reaffirmed DOJ’s commitment to targeting employment practices at organizations that receive federal funding with the False Claims Act during the Federal Bar Association’s annual Qui Tam Conference in Washington, D.C. In her prepared remarks, Jenny also identified fact patterns that represent the types of “antidiscrimination” FCA claims DOJ is pursuing. What
- [FCA Basics: Liability Theories](https://www.dorseyfca.com/fca-basics-liability-theories/) - This is the fifth post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. Today’s post covers the categories and scope of FCA liability. Theories of Liability There are three principal ways an FCA defendant can be
- [FCA Basics: Statute of Limitations and Timing-Related Defenses](https://www.dorseyfca.com/fca-basics-procedural-rules/) - This is the fourth post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. Today’s post focuses on procedural requirements, including the FCA’s statute of limitations rules, statute of repose, first-to-file rule, and public disclosure bar. FCA
- [False Claims Act Recoveries Top $6.8 Billion in Record FY 2025](https://www.dorseyfca.com/false-claims-act-recoveries-top-6-8-billion-in-record-fy-2025/) - The Department of Justice (DOJ) announced that False Claims Act (FCA) settlements and judgments surpassed $6.8 billion in FY 2025—the highest single-year total in FCA history.1 DOJ reported a record 1,297 qui tam filings and 401 new government investigations opened for the year. Healthcare fraud enforcement once again dominated the recoveries, accounting for more than $5.7
- [FCA Basics: Qui Tam Lawsuits](https://www.dorseyfca.com/fca-basics-qui-tam-lawsuits/) - This is the third post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. Today’s post introduces the qui tam provisions of the FCA. The FCA’s Qui Tam Device Under the qui tam provisions of the FCA,
- [Eleventh Circuit to Hear Argument on Article II Challenge to FCA Qui Tam Provisions in Zafirov](https://www.dorseyfca.com/eleventh-circuit-to-hear-argument-on-article-ii-challenge-to-fca-qui-tam-provisions-in-zafirov/) - Under the False Claims Act (FCA), private individuals—i.e. qui tam relators—file suit on behalf of the government against individuals or organizations, seeking to redress alleged frauds on the government. See 31 U.S.C. § 3730(b). The FCA’s qui tam provisions have faced constitutional challenges in the past. But until recently, courts have almost uniformly turned those
- [The Eleventh Circuit Hears Oral Argument in Zafirov: The Case that Could Upend Qui Tam Litigation](https://www.dorseyfca.com/the-eleventh-circuit-hears-oral-argument-in-zafirov-the-case-that-could-upend-qui-tam-litigation/) - On December 12, 2025, the Eleventh Circuit heard oral arguments in United States ex rel. Zafirov v. Florida Medical Associates, an appeal challenging relators’ authority to bring claims under the qui tam provisions of the False Claims Act and the Vesting, Take Care, and Appointments Clauses (see here for a summary of the arguments made
- [FCA Basics: Elements of a Claim](https://www.dorseyfca.com/fca-basics-elements-of-a-claim/) - This is the second post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. Today’s post introduces the elements of an FCA Claim. The Basic Elements of an FCA Claim There are several theories of liability under
- [Judge Rejects FCA Settlement Deal: No Rubber Stamping and Bromides Won’t Do](https://www.dorseyfca.com/judge-rejects-fca-settlement-deal-no-rubber-stamping-and-bromides-wont-do/) - A recent decision by the U.S. District Court for the Northern District of California to reject a proposed $57 million settlement in a False Claims Act (FCA) litigation highlights the unique challenges and complexities that surround the resolution of FCA cases—challenges that set them apart from ordinary civil litigation. Background: The Tetra Tech Case The
- [SuperValu: Relators’ SCOTUS Victory Turns Pyrrhic After Jury’s Defense Verdict and Denial of Post-Trial Motions](https://www.dorseyfca.com/supervalu-relators-scotus-victory-turns-pyrrhic-after-jurys-defense-verdict-and-denial-of-post-trial-motions/) - Last week, after fourteen years of litigation, United States ex rel. Schutte v. SuperValu, Inc. arrived at its likely end after the U.S. District Court for the Central District of Illinois rejected relators’ bid for a new trial after a jury returned a defense verdict earlier this year. Filed in 2011 and unsealed in 2015,
- [FCA Basics Series: Introduction to the False Claims Act](https://www.dorseyfca.com/introduction-to-the-false-claims-act/) - Dorsey’s FCANow Blog is kicking off a new series—FCA Basics. Over the coming months, the FCANow Blog will feature posts covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. This inaugural post introduces the FCA, its history, and its purpose. A Brief History of the
- [Department of Justice Launches “Civil Rights Fraud Initiative” to Target DEI Through False Claims Act](https://www.dorseyfca.com/department-of-justice-launches-civil-rights-fraud-initiative-to-target-dei-through-false-claims-act/) - On Monday, May 19, 2025, Department of Justice (“DOJ”) Deputy Attorney General Todd Blanche issued a memorandum establishing the “Civil Rights Fraud Initiative” (the “Memorandum”), in the latest signal that DOJ intends to aggressively enforce the False Claims Act in pursuit of the administration’s goals. According to the Memorandum, DOJ has launched a joint enforcement effort between the Civil
- [The Trump Administration’s Sweeping New Tariffs Heighten False Claims Act Risks for U.S. Importers](https://www.dorseyfca.com/the-trump-administrations-sweeping-new-tariffs-heighten-false-claims-act-risks-for-u-s-importers/) - As the business community adjusts to the reality of the Trump Administration’s sweeping new tariff regime, importers and other organizations that rely on imports should be mindful that with the expansion and sharp increases to import tariffs come increased risks under the False Claims Act (FCA). Given the administration’s public commitment to “aggressive” FCA enforcement,
- [DOJ Intends to “Aggressively” Enforce the False Claims Act During Second Trump Administration](https://www.dorseyfca.com/doj-intends-to-aggressively-enforce-the-false-claims-act-during-second-trump-administration/) - Deputy Assistant Attorney General Michael Granston laid out the Department of Justice’s (“DOJ”) priorities over the next four years at the Federal Bar Association’s annual qui tam conference in Washington, D.C. last week. In his keynote address, Granston dispelled any notions that False Claims Act (“FCA”) enforcement would be curtailed, saying that DOJ “plans to
- [DOJ: Whistleblowers Filed Highest Number of FCA Cases Ever and Settlements and Judgments Exceeded $2.9 Billion in FY 2024](https://www.dorseyfca.com/doj-whistleblowers-filed-highest-number-of-fca-cases-ever-and-settlements-and-judgments-exceeded-2-9-billion-in-fy-2024/) - The U.S. Department of Justice (DOJ) recently released the fiscal year (FY) 2024 (October 1, 2023 – September 30, 2024) statistics on qui tam and non-qui tam actions under the False Claims Act, 31 U.S.C. § 3729, et seq. (FCA). Relator whistleblowers filed the highest number of FCA actions ever, totaling 979 new qui tam
- [False Claims Act Settlements and Judgments Near $3 Billion in 2023](https://www.dorseyfca.com/false-claims-act-settlements-and-judgments-near-3-billion-in-2023/) - The U.S. Department of Justice (DOJ) announced recently that settlements and judgments under the False Claims Act, 31 U.S.C. § 3729, et seq. (FCA) totaled approximately $2.7 billion in FY 2023 (October 1, 2022 – September 30, 2023). DOJ and whistleblowers were party to 543 settlements and judgments, a record high, and a fifty-percent increase
- [Supreme Court’s Recent Decision on FCA’s Scienter Standard Potentially Raises Threshold for Government to Establish “Reckless Disregard”](https://www.dorseyfca.com/supreme-courts-recent-decision-on-fcas-scienter-standard-potentially-raises-threshold-for-government-to-establish-reckless-disregard/) - On June 1, 2023, a unanimous Supreme Court decision sought to clarify the meaning of “scienter” in the FCA context, which deals with the defendant’s knowledge (or lack thereof) that a claim for payment was false and intent to submit the false claim. See United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct.
- [Third Circuit Confirms Expansion of Anti-Retaliation Standard Under the False Claims Act](https://www.dorseyfca.com/third-circuit-confirms-expansion-of-anti-retaliation-standard-under-the-false-claims-act/) - On November 30, 2022, the Third Circuit Court of Appeals vacated dismissal of a retaliation action brought by Don Ascolese (“Ascolese”) under the False Claims Act (“FCA”). See United States ex rel. Don Ascolese v. Shoemaker Constr. Co., No. 21-2899, ECF No. 30 (3d Cir. 2022) (“3d Cir. Opinion”). In the complaint before the lower
- [Supreme Court Declines to Weigh In on Latest Dispute Over Pleading Standard for Causes of Action Brought Under the False Claims Act](https://www.dorseyfca.com/supreme-court-declines-to-weigh-in-on-latest-dispute-over-pleading-standard-for-causes-of-action-brought-under-the-false-claims-act/) - The Supreme Court recently denied three petitions for writs of certiorari, opting not to clarify the heightened pleading requirements for allegations of fraud under the False Claims Act ("FCA"). The cases for which certiorari was denied are Molina Healthcare of Illinois v. Prose, No. 21-1145; United States ex rel. Owsley v. Fazzi Associates, Inc., No.
- [Massachusetts Follows Several Other States in Settling with Medicaid Managed Care Giant](https://www.dorseyfca.com/massachusetts-follows-several-other-states-in-settling-with-medicaid-managed-care-giant/) - On September 29, 2022, Massachusetts Attorney General Maura Healey announced that Medicaid managed care and pharmacy benefits giant Centene Corporation agreed to pay $14 million to resolve claims that it overcharged MassHealth, the Massachusetts Medicaid program. This latest settlement comes shortly after Centene struck similar deals in other states, including a $33 million deal to
- [DC Circuit Adopts Pro Tanto Rule for “Common Damages” in FCA Claims Involving Multiple Defendants](https://www.dorseyfca.com/dc-circuit-adopts-pro-tanto-rule-for-common-damages-in-fca-claims-involving-multiple-defendants/) - The United States Court of Appeals for the D.C. Circuit recently considered the extent to which settlements in related False Claims Act cases must be offset against damages owed by non-settling parties – and the appropriate measure for allocating previous settlements in later related cases. In United States v. Honeywell Int'l Inc., the Department of
- [DOJ Announces First-In-The-Nation False Claims Act Settlement with PPP Lender](https://www.dorseyfca.com/doj-announces-first-in-the-nation-false-claims-act-settlement-with-ppp-lender/) - The government has been actively investigating and prosecuting Paycheck Protection Program (“PPP” or the “Program”) fraud ever since the Small Business Administration (“SBA”) rolled out the Program in the Spring of 2020 to provide SBA-backed loans to help eligible businesses maintain their workforces during the COVID-19 pandemic. At first the government’s efforts focused on cases
- [Eighth Circuit Analyzes Scope of FCA Liability Under Anti-Kickback Statute](https://www.dorseyfca.com/eighth-circuit-analyzes-scope-of-fca-liability-under-anti-kickback-statute/) - On July 26, 2022, the Eighth Circuit Court of Appeals issued an opinion interpreting the standard for the causal link the government must show to establish that a “false or fraudulent” claim under the False Claims Act (“FCA”) included “items or services resulting from a violation” of 42 U.S.C. § 1320a-7b(g), the federal anti-kickback statute.
- [A Hefty Speaking Fee: Biogen Inc. Agrees to Settle False Claims Act Suit In Violation of Anti-Kickback Statute for $900 Million](https://www.dorseyfca.com/a-hefty-speaking-fee-biogen-inc-agrees-to-settle-false-claims-act-suit-in-violation-of-anti-kickback-statute-for-900-million/) - On July 20, 2022, Biogen Inc. (“Biogen”) disclosed in a quarterly earnings report that it had agreed to pay $900 million to resolve a qui tam claim by a former employee that the company had violated the False Claims Act (“FCA”) and the Federal Anti-Kickback Statute (“AKS”). See Biogen Reports Second Quarter 2022 Results; see
- [DOJ Secures FCA Settlement with Health Services Companies](https://www.dorseyfca.com/doj-secures-fca-settlement-with-health-services-companies/) - The U.S. Attorney’s Office for the District of Massachusetts recently secured a settlement agreement resolving allegations that Molina Healthcare, Inc. and its prior subsidiary, Pathways of Massachusetts, which provide mental health services in Springfield and Worcester, Massachusetts, violated the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. and the Massachusetts-equivalent to the FCA.
- [SCOTUS to Address Government’s Authority to Dismiss FCA Cases](https://www.dorseyfca.com/scotus-to-address-governments-authority-to-dismiss-fca-cases/) - The United States Supreme Court recently granted review of a decision from the Third Circuit that affirmed the dismissal of an FCA case at the government’s request. Polansky v. Exec. Health Res., 17 F.4th 376, 393 (3d Cir. 2021); Polansky v. Exec. Health Res., 21-1052 (June 21, 2022). Polansky resisted the government’s request to dismiss
- [DOJ Announces Settlement with Home-Health Services Company Over FCA Kickback and Overbilling Allegations](https://www.dorseyfca.com/doj-announces-another-settlement-with-home-health-services-company-over-fca-kickback-and-overbilling-allegations/) - The Department of Justice recently announced that it resolved two civil lawsuits filed under the qui tam, or whistleblower, provisions of the False Claims Act to the tune of nearly $4 million. The suits alleged that a suburban Chicago diagnostics company, SNAP Diagnostics, LLC, that provides home testing for sleep disorders was defrauding Medicare and
- [Seventh Circuit Says Summary Judgment Stands: Evidence Does Not Support FCA Retaliation](https://www.dorseyfca.com/seventh-circuit-says-summary-judgment-stands-evidence-does-not-support-fca-retaliation/) - Yesterday, the Seventh Circuit Court of Appeals affirmed a summary judgment decision dismissing a former employee’s False Claims Act (“FCA”) retaliation suit. Lam v. Springs Window Fashions, LLC, No. 21-2665, 2022 U.S. App. LEXIS 16633 (7th Cir. June 16, 2022). The appellate court agreed that the employer’s conduct fell short of “harassment” under the statute,
- [DOJ Announces $2.8 Million Settlement with Construction Company Over SDVOSB Set Asides, Further Fallout From DOJ’s Settlement with TriMark USA](https://www.dorseyfca.com/doj-announces-2-8-million-settlement-with-construction-company-over-sdvosb-set-asides-further-fallout-from-dojs-settlement-with-trimark-usa/) - On Friday, May 13, 2022, the Department of Justice announced that it reached a settlement with Hensel Phelps Construction Company (“Hensel Phelps”) over allegations that the company had, in violation of the False Claims Act, circumvented subcontract set-asides for service-disabled veteran owned small businesses (“SDVOSB”). The case concerned a multi-million dollar prime contract awarded in
- [Healthcare Fraud Settlement Showcases Government’s Additional Focus on COVID-19-Related Fraud](https://www.dorseyfca.com/healthcare-fraud-settlement-showcases-governments-additional-focus-on-covid-19-related-fraud/) - The Department of Justice (“DOJ”) last month announced a new blockbuster settlement agreement under the False Claims Act, 31 U.S.C. § 3729 et seq (“FCA”), involving alleged violations of the Stark law and other efforts to defraud federal and state healthcare programs. The agreement also resolved the government’s allegations that the defendants—having allegedly engaged in
- [More DOJ Double-Dipping PPP Fraud News](https://www.dorseyfca.com/more-doj-double-dipping-ppp-fraud-news/) - The Department of Justice (“DOJ”) continues rolling out new settlement agreements related to COVID-19 fraud—highlighting the government’s and a common relator’s efforts to crack down on those alleged to have improperly received monies through the Paycheck Protection Program (“PPP” or “Program”). A new settlement agreement once again showcases these trends and illustrates the civil liability
- ["Shotgun Pleadings" Ineffective for FCA Claims](https://www.dorseyfca.com/shotgun-pleadings-ineffective-for-fca-claims/) - On April 21, 2022, the Northern District of Georgia granted a motion to dismiss a False Claims Act (“FCA”) suit brought against ERMI LLC (“ERMI”), a medical device manufacturer, describing the complaint as a “shotgun pleading.” This action was brought by Relator Elizabeth Cooley, ERMI’s former chief compliance officer. Cooley alleged that ERMI, its CEO
- [DOJ Shows No Sign of Slowing Down Prosecution of Individuals Connected to FCA Cases](https://www.dorseyfca.com/doj-shows-no-sign-of-slowing-down-prosecution-of-individuals-connected-to-fca-cases/) - Following a record year for False Claims Act (“FCA”) settlements and judgments in 2021, the Department of Justice (”DOJ”) continues to aggressively pursue the prosecution of not only corporations, but also the individuals connected to corporate criminal cases. Within the first quarter of 2022, the DOJ has already announced numerous False Claims Act violations involving
- [Latest PPP Fraud Settlement Showcases Civil and Criminal Penalties for Knowingly Submitting False Claims](https://www.dorseyfca.com/latest-ppp-fraud-settlement-showcases-civil-and-criminal-penalties-for-knowingly-submitting-false-claims/) - The Department of Justice (“DOJ”) continues racking up more settlement agreements under the False Claims Act, 31 U.S.C. § 3729 et seq (“FCA”) with companies and individuals alleged to have improperly used funds received through the Paycheck Protection Program (“PPP” or “Program”). The latest PPP fraud settlement illustrates that attempts to fraudulently obtain forgiveness of
- [DOJ Announces First Settlement Under New Civil Cyber-Fraud Initiative](https://www.dorseyfca.com/doj-announces-first-settlement-under-new-civil-cyber-fraud-initiative/) - In October 2021, the Department of Justice (“DOJ”) announced its new Civil Cyber-Fraud Initiative, led by the Civil Division’s Fraud Section, to enhance its ongoing efforts to address cybersecurity threats. The initiative utilizes the False Claims Act (“FCA”) to prosecute cybersecurity fraud by federal contractors and grant recipients who put government information or systems at
- [Home-Health Services Company Settles After Allegations of Double-Billing Scheme](https://www.dorseyfca.com/home-health-services-company-settles-after-allegations-of-double-billing-scheme/) - The Department of Justice recently announced that a home-health services company has agreed to pay over $45,000 to resolve alleged False Claims Act (“FCA”) violations. Professional Family Care Services, Inc. (“PFCS”), a North Carolina corporation, faced allegations of fraudulent billing for work by an employee that was convicted of wire fraud and sentenced to prison
- [DOJ Announces More FCA Settlement Agreements Over PPP Fraud](https://www.dorseyfca.com/doj-announces-more-fca-settlement-agreements-over-ppp-fraud/) - Fresh off the new year, the Department of Justice (“DOJ”) continues to announce new settlements under the False Claims Act, 31 U.S.C. § 3729 et seq (“FCA”)—further cementing the trend of private parties suing borrowers for violating requirements of the Paycheck Protection Program (“PPP” or the “Program”). Two new FCA settlements were announced earlier this month involving
- [Settlement Illustrates Continued Use of FCA to Combat PPP Fraud](https://www.dorseyfca.com/settlement-illustrates-continued-use-of-fca-to-combat-ppp-fraud/) - The trend of private parties suing businesses under the False Claims Act, 31 U.S.C. § 3729 et seq (“FCA”) for violating requirements of the Paycheck Protection Program (“PPP” or the “Program”) continues. Just recently, the Department of Justice (“DOJ”) issued a press release announcing its latest settlement in an FCA case involving Sextant Marine Consulting,
- [Enforcement Standards Tighten on Private Insurers: Sutter Health Settles for $90 Million Following Dispute With DOJ](https://www.dorseyfca.com/enforcement-standards-tighten-on-private-insurers-sutter-health-settles-for-90-million-following-dispute-with-doj/) - On August 30, 2021, the Department of Justice (“DOJ”) announced that Sutter Health and several of its affiliated entities (“Sutter”) agreed to pay a total of $90 million to settle allegations that Sutter violated the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, by “knowingly submitting inaccurate information about the health status of beneficiaries enrolled
- [Fired Employee Alleges Employer Unlawfully Retaliated Against Him For Complaining of PPP Fraud](https://www.dorseyfca.com/fired-employee-alleges-employer-unlawfully-retaliated-against-him-for-complaining-of-ppp-fraud/) - Civil litigation by private parties alleging False Claims Act (“FCA”) violations related to Paycheck Protection Program (“PPP”) fraud appears to be heating up. On September 22, 2021, a former restaurant manager filed a complaint in the Eastern District of New York alleging he was unlawfully terminated from his employment in retaliation for complaining to his
- [No Claim Too Small: Contractor Settles FCA Claims for Failure to Return $14,000 of Reimbursed Equipment](https://www.dorseyfca.com/no-claim-too-small-contractor-settles-fca-claims-for-failure-to-return-14000-of-reimbursed-equipment/) - On May 28, 2021, a District of Maine judge granted a joint motion for stipulated judgment in favor of the United States, ending the False Claims Act suit against a Coast Guard contractor hired to assist with the excavation of a World War II-era airplane crash site. United States of America v. Luciano A. Sapienza,
- [SCOTUS Denies Review of Dismissal at DOJ’s Request; Circuit Split Remains](https://www.dorseyfca.com/scotus-denies-review-of-dismissal-at-dojs-request-circuit-split-remains/) - On June 28, 2021, the United States Supreme Court denied review of a Seventh Circuit decision affirming the Department of Justice (“DOJ”)-requested dismissal of a False Claims Act (“FCA”) suit alleging a drug kickback scheme. Cimznhca LLC v. United States, No. 20-1138, 2021 U.S. LEXIS 3404 (June 28, 2021). As a result, the circuit split
- [Eight Years Later: “Speculative” and “Straightforward” FCA Allegations Against Walmart Dismissed](https://www.dorseyfca.com/eight-years-later-speculative-and-straightforward-fca-allegations-against-walmart-dismissed/) - Walmart successfully ended eight years of protracted litigation under the False Claims Act (“FCA”) on June 4, 2021, when the Sixth Circuit affirmed dismissal of Medicare and Medicaid fraud allegations against the major retailer. The case was first filed in February 2013. See United States ex rel. Sheoran v. Wal-Mart Stores E., No. 13-10568, 2019
- [Northern District of Texas Refuses to Enforce Purported Pre-Filing Qui Tam Claim Release on Public Policy Grounds](https://www.dorseyfca.com/northern-district-of-texas-refuses-to-enforce-purported-pre-filing-qui-tam-claim-release-on-public-policy-grounds/) - On April 30, 2021, a Northern District of Texas judge denied a motion to dismiss an FCA qui tam action alleging “a fraudulent scheme to obtain Government subcontracting opportunities reserved for eligible small businesses under the Small Business Act.” United States ex rel. Haight v. RRSA (Commer. Div), LLC, 3:16-CV-1975-S, 2021 U.S. Dist. LEXIS 82894,
- [District of New Jersey Rules Prescription Drug Events Tainted By Alleged Kickback Schemes Constitute False Claims](https://www.dorseyfca.com/district-of-new-jersey-rules-prescription-drug-events-tainted-by-alleged-kickback-schemes-constitute-false-claims/) - A federal judge recently ruled that submission of electronic data to the government can, under appropriate circumstances, give rise to liability under the False Claims Act. In U.S. ex rel. Marc Silver et al. v. Omnicare Inc. et al., 1:11-cv-01326 (D.N.J. Apr. 13, 2021), U.S. District Court Judge Noel C. Hillman granted a relator’s motion
- [A New Circuit Split: FCA Protects Former Employees from Post-Employment Retaliation in the Sixth](https://www.dorseyfca.com/a-new-circuit-split-fca-protects-former-employees-from-post-employment-retaliation-in-the-sixth/) - Over a vigorous dissent last week, a panel of the U.S. Court of Appeals for the Sixth Circuit vacated a ruling from the U.S. District Court for the Eastern District of Michigan and held the False Claims Act’s anti-retaliation provision protects former employees alleging post-termination retaliation. United States ex rel. Felten v. William Beaumont Hosp.,
- [Omnicare and CVS’s “Novel” Argument Fails to Defeat FCA Claims](https://www.dorseyfca.com/omnicare-and-cvss-novel-argument-fails-to-defeat-fca-claims/) - On March 19, 2021, a Southern District of New York judge denied a motion to dismiss a False Claims Act (“FCA”) suit alleging that Omnicare—a subsidiary of CVS Health Corp.—“dispensed drugs based on invalid prescriptions to potentially tens of thousands of individuals living at more than 3,000 residential facilities.” See United States ex rel. Bassan
- [False Claims Act Anti-Retaliation Claim Leveled at PPP Recipient](https://www.dorseyfca.com/false-claims-act-anti-retaliation-claim-leveled-at-ppp-recipient/) - A former employee of Great Dane Petroleum Contractors, Inc. a full-service Pollutant Control and General Contractor based in Florida, alleged in a recently-filed lawsuit that the company misused nearly $3 million in Paycheck Protection Program (“PPP”) funds. See Rucker v. Great Dane Petroleum Contractors, Inc., No. 21-cv-207 (M.D. Fla. Mar. 10, 2021). As another wave
- [Supreme Court Declines to Resolve Circuit Split Regarding Standard for “Falsity” in FCA Claims](https://www.dorseyfca.com/supreme-court-declines-to-resolve-circuit-split-regarding-standard-for-falsity-in-fca-claims/) - On February 22, 2021, the United States Supreme Court declined to resolve a circuit split regarding the proper standard under which False Claims Act (“FCA”) claims in the medical context should be reviewed. See Care Alternatives v. United States, No. 20-371, 2021 U.S. LEXIS 915 (Feb. 22, 2021). The Court’s decision leaves open the question
- [Tread Carefully: District of Utah Grants Motion For Attorneys’ Fees After Unsupported FCA Claim](https://www.dorseyfca.com/tread-carefully-district-of-utah-grants-motion-for-attorneys-fees-after-unsupported-fca-claim/) - On February 3, 2020, the U.S. District Court for the District of Utah granted a motion for attorneys’ fees against Plaintiff Kelly Sorenson (“Sorenson”), finding that the claims Sorenson asserted against his former employer under the False Claims Act (“FCA”) were “clearly frivolous” and compensable under 31 U.S.C. § 3730(d)(4). United States ex rel. Sorenson
- [Justice Department Annual Release Shows Decreased FCA Recoveries But Increased FCA Matters in FY2020, Suggesting Likely Uptick in 2021](https://www.dorseyfca.com/justice-department-annual-release-shows-decreased-fca-recoveries-but-increased-fca-matters-in-fy2020-suggesting-likely-uptick-in-2021/) - On January 14, 2021, the United States Department of Justice (“DOJ”) issued its annual press release highlighting its recoveries from False Claims Act (“FCA”) enforcement over the last fiscal year. Total recoveries in FY2020 exceeded $2.2 billion, with the majority—$1.8 billion—of those recoveries coming from the healthcare industry. These totals are down substantially from FY2019,
- [Borrowers and Banks Beware: The New Year Brings the Nation’s First False Claims Act Settlement for Paycheck Protection Program Fraud](https://www.dorseyfca.com/borrowers-and-banks-beware-the-new-year-brings-the-nations-first-false-claims-act-settlement-for-paycheck-protection-program-fraud/) - On January 12, 2021, the Eastern District of California entered into a civil settlement with a Paycheck Protection Program (“PPP”) borrower and its CEO to resolve allegations of fraud. The settlement stemmed from a $350,000 PPP loan that SlideBelts Inc., an internet retail company, received even though it was a prohibited borrower as a debtor
- [In the First FCA Appellate Case of 2021, the Fourth Circuit Affirms the Dismissal of Relators’ Claims for Lack of Scienter and Failing to Engage in Protected Activity](https://www.dorseyfca.com/in-the-first-fca-appellate-case-of-2021-the-fourth-circuit-affirms-the-dismissal-of-relators-claims-for-lack-of-scienter-and-failing-to-engage-in-protected-activity/) - On January 8, 2021, in the first appellate decision of the year addressing a False Claims Act case, the Fourth Circuit affirmed the summary judgment dismissal of relators’ claims that a manufacturer of allergenic extracts violated the FCA. Skibo v. Greer Labs., 2021 U.S. App. LEXIS 508 (Jan. 8, 2021) (per curiam). Like most FCA
- [DOJ Demonstrates Continued Focus on Opioid Crisis with $600 Million Criminal and Civil Settlement Against Indivior Solutions, Indivior Inc., and Indivior plc](https://www.dorseyfca.com/doj-demonstrates-continued-focus-on-opioid-crisis-with-600-million-criminal-and-civil-settlement-against-indivior-solutions-indivior-inc-and-indivior-plc/) - The Department of Justice’s (“DOJ”) most recent settlement with Indivior Solutions, Inc., Indivior Inc., and Indivior plc (together, “Indivior”) demonstrates not only that the DOJ is continuing its pursuit of claims and settlements related to the opioid crisis, but also that the DOJ is searching for creative penalties beyond large monetary payouts. In a July
- [Another Escobar Exemplar: District of New Jersey Finds Materiality Lacking](https://www.dorseyfca.com/another-escobar-exemplar-district-of-new-jersey-finds-materiality-lacking/) - Last week, the U.S. District Court for the District of New Jersey dismissed a qui tam action against Defendants Pioneer Education, LLC, Pioneer Education Manager, Inc., Jolie Health & Beauty Academy, and Joseph Visconti (collectively, “the Academy”) alleging violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729-33. United States ex rel. Lampkin v.
- [The Granston Memo Strikes Again, but the Standards for Dismissal Remain Unclear](https://www.dorseyfca.com/the-granston-memo-strikes-again-but-the-standards-for-dismissal-remain-unclear/) - As has been emphasized with the disclosure of the “Granston Memo” in January 2018 and several cases since, the government may request dismissal of a qui tam action filed under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., in certain circumstances, and even over the relator’s objection and when the government has
- [Court Enters Judgment Totaling More Than $32 Million on Mississippi Jury’s $10.8 Million Verdict, Demonstrating Risks for Defendants Found Guilty of False Claims Act Violations at Trial](https://www.dorseyfca.com/court-enters-judgment-totaling-more-than-32-million-on-mississippi-jurys-10-8-million-verdict-demonstrating-risks-for-defendants-found-guilty-of-false-claims-act-violations-at-trial/) - Shortly before COVID-19 halted jury proceedings across the United States, a Mississippi jury sided with the Government to return a $10.8 million verdict against Stone County Hospital and several affiliates for what the jury found were false Medicare claims submitted in violation of the False Claims Act (“FCA”). United States ex rel. Aldridge v. Corporate
- [$4.47 Million False Claims Act Settlement Targets Set-Aside Contractors, Affiliates, and Even Third-Party Bonding Company](https://www.dorseyfca.com/4-47-million-false-claims-act-settlement-targets-set-aside-contractors-affiliates-and-even-third-party-bonding-company/) - Over three years after the filing of the initial sealed complaint, a New York-based construction company and several affiliates—including its bonding company—have agreed to pay a combined $4.47 million to settle a False Claims Act case alleging a decade-long scheme to fraudulently obtain federal contracts set aside for Service-Disabled Veteran-Owned Small Business Concerns (“SDVOSBCs”) and
- [False Claims Act Exposure for Beneficiaries of the Public Health and Social Services Emergency Relief Fund:  Mitigating Risks of Ambiguous Terms & Conditions](https://www.dorseyfca.com/false-claims-act-exposure-for-beneficiaries-of-the-public-health-and-social-services-emergency-relief-fund-mitigating-risks-of-ambiguous-terms-conditions/) - I. Introduction The CARES Act allocated $100 billion in relief funds to hospitals and other healthcare providers, to be distributed by the Department of Health and Human Services (“HHS”) through the Public Health and Social Services Emergency Relief Fund (or “Provider Relief Fund”). Many healthcare providers across the country have received payments from the Fund,
- [Importer and Its Executives Pay $5.2 Million Under FCA for Evading U.S. Tariffs](https://www.dorseyfca.com/importer-and-its-executives-pay-5-2-million-under-fca-for-evading-u-s-tariffs/) - An importer recently agreed to pay $5.2 million to settle a False Claims Act (“FCA”) case alleging evasion of antidumping duties (“AD”) on wooden bedroom furniture from China. The importer, Blue Furniture Solutions, LLC (now doing business through its successor, XMillenium LLC), allegedly imported merchandise into the United States using false descriptions and invoices that
- [Underwriter Failed to Meet Employer’s Expectations, and thus His FCA Retaliation Burden, at Least in the Eighth Circuit](https://www.dorseyfca.com/underwriter-failed-to-meet-employers-expectations-and-thus-his-fca-retaliation-burden-at-least-in-the-eighth-circuit/) - On Monday, the U.S. Court of Appeals for the Eighth Circuit affirmed the Eastern District of Missouri’s dismissal of appellant’s retaliation claim under the False Claims Act, as well as his state law wrongful discharge claim and quasi-contract claims. The decision, Sherman v. Berkadia Commer. Mortg. LLC, No. 19-1373, 2020 U.S. App. LEXIS 11713 (8th
- [Looking Ahead: Enforcement Actions for Fraud, Waste, and Abuse Related to COVID-19](https://www.dorseyfca.com/looking-ahead-enforcement-actions-for-fraud-waste-and-abuse-related-to-covid-19/) - As the public health and economic responses to COVID-19 dominate the headlines and traditional government enforcement actions slow, anticipate a significant increase in government enforcement actions, internal investigations related to corporate fraud, and qui tam (whistleblower) actions in the coming months. The CARES Act contains appropriations for tens of millions of dollars for agency inspector
- [$145 Million Settlement Shows the Depth of Government’s Effort to Combat Opioid Crisis and its Interest in Fraud Actions Against Electronic Health Records Companies](https://www.dorseyfca.com/145-million-settlement-shows-the-depth-of-governments-effort-to-combat-opioid-crisis-and-its-interest-in-fraud-actions-against-electronic-health-records-companies/) - Less than a year after United States Attorney Christina E. Nolan warned electronic health records (“EHR”) companies in a DOJ press release that they “should consider themselves on notice” following a $57.25 million FCA settlement with EHR software developer Greenway Health LLC, the DOJ announced in a recent press release a $145 million settlement with
- [Escobar in Action: Physician-owners’ fraud claims against hospital defeated in Fifth Circuit appeal for lack of materiality](https://www.dorseyfca.com/escobar-in-action-physician-owners-fraud-claims-against-hospital-defeated-in-fifth-circuit-appeal-for-lack-of-materiality/) - Following the passage of the Affordable Care Act (“ACA”), which placed new limits on physician-owned hospitals, St. Luke’s Health System (“System”) took action to change one of its hospital’s ownership structures through a buy-out of the physicians’ partnership interests pursuant to the Texas Securities Act (“TSA”). The TSA allows rescission for the original price paid
- [Sixth Circuit:  Timing of Physician Certification for In-Home Care Remains Material After Escobar](https://www.dorseyfca.com/sixth-circuit-timing-of-physician-certification-for-in-home-care-remains-material-after-escobar/) - A divided panel of the U.S. Court of Appeals for the Sixth Circuit again revived an FCA suit against home-health services providers premised on the providers’ alleged improper procurement of physician medical necessity certifications supporting Medicare claims. In United States v. Brookdale Senior Living Communities, Inc., --- F.3d ----, 2018 WL 2770598 (6th Cir. June
- [Supreme Court Settles Circuit Split and Reads the False Claims Act Statute of Limitations Provision Broadly in Boon to Relators](https://www.dorseyfca.com/supreme-court-settles-circuit-split-and-reads-the-false-claims-act-statute-of-limitations-provision-broadly-in-boon-to-relators/) - On May 13, 2019, the U.S. Supreme Court decided Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18–325, and resolved a circuit split regarding the statute of limitations for an FCA claim brought by a relator between six and ten years after a violation, but less than three years after the government knew
- [An Ambulance Provider’s Long Road to Settlement](https://www.dorseyfca.com/an-ambulance-providers-long-road-to-settlement/) - On June 20, 2019, more than six years after the case was first set into motion by the Relator, the U.S. Attorney's Office for the District of Maryland announced in a press release that Hart to Heart Ambulance Services, Inc. (“Hart to Heart”) settled a false claims act case—which alleged that it submitted false claims
- [Software Provider and DOJ Reach $8.6M Settlement for FCA Case Involving Alleged Cyber Security Shortcomings](https://www.dorseyfca.com/software-provider-and-doj-reach-8-6m-settlement-for-fca-case-involving-alleged-cyber-security-shortcomings/) - Amid increased public and government attention to cyber security, a qui tam plaintiff’s lawsuit has resulted a large settlement for a government contractors’ purported misrepresentations regarding compliance with government cyber security standards. In what is believed to be the first-of-its-kind settlement of an FCA claim premised upon cyber security misrepresentations, Cisco Systems recently agreed to
- [Triggering the Public Disclosure Bar: It’s in the Details](https://www.dorseyfca.com/triggering-the-public-disclosure-bar-its-in-the-details/) - On February 5, the U.S. District Court for the Eastern District of Pennsylvania rejected a defendant’s public disclosure bar defense, allowing the relators to proceed with their qui tam action under the False Claims Act. Sturgeon, et al., v. PharMerica Corp, No. 15-cv-6829, 2020 WL 586978, at *1 (E.D. Pa. Feb. 5, 2020). In denying
- [DOJ’s Procurement Collusion Strike Force Priorities Highlighted By Bid-Rigging Qui Tam Settlement](https://www.dorseyfca.com/dojs-procurement-collusion-strike-force-priorities-highlighted-by-bid-rigging-qui-tam-settlement/) - In an article published late last year, Dorsey reported on the Department of Justice’s announcement regarding the formation of a new Procurement Collusion Strike Force. The Strike Force focuses on the nexus between antitrust and public procurement, with the stated aim of targeting antitrust crimes “such as bid-rigging conspiracies and related fraudulent schemes.” If there
- [Justice Department Touts FY2019 False Claims Act Statistics as Evidence of Administration’s “High Priority” Against Fraud, but the Numbers Show Less of a Priority on Qui Tams](https://www.dorseyfca.com/justice-department-touts-fy2019-false-claims-act-statistics-as-evidence-of-administrations-high-priority-against-fraud-but-the-numbers-show-less-of-a-priority-on-qui-tams/) - Earlier this month, the United States Department of Justice issued a press release to announce recoveries of over $3 billion from False Claims Act cases in FY2019. In making the announcement, Assistant Attorney General Jody Hunt of the Civil Division emphasized, “The significant number of settlements and judgments obtained over the past year demonstrate the
- [Second Circuit Holds that the FCA Applies to Regional Federal Banks](https://www.dorseyfca.com/second-circuit-holds-that-the-fca-applies-to-regional-federal-banks/) - On November 21, 2019, the Second Circuit held that allegedly fraudulent loan requests presented to one or more of the Federal Reserve System’s twelve Federal Reserve Banks are “claims” within the meaning of the FCA. The court clarified that while personnel of those Federal Reserve Banks are not officers or employees of the United States,
- [Dorsey Alert:  HHS Regulatory Sprint May Impact FCA Enforcement Trends](https://www.dorseyfca.com/dorsey-alert-hhs-regulatory-sprint-may-impact-fca-enforcement-trends/) - The False Claims Act (“FCA”) is an ever-present concern among health care providers and counsel, which is why it is no surprise that the Department of Health and Human Services' (HHS) recent “Regulatory Sprint to Coordinated Care” may impact FCA enforcement trends. Dorsey’s Health Law Blog team has been closely monitoring the “Regulatory Sprint,” including
- [Second Circuit Emphasizes Heightened Pleading Standard for Qui Tam FCA Suits](https://www.dorseyfca.com/second-circuit-emphasizes-heightened-pleading-standard-for-qui-tam-fca-suits/) - The Second Circuit Court of Appeals recently emphasized the heightened pleading standard that a relator in a qui tam False Claims Act (“FCA”) suit must satisfy to avoid dismissal under Rule 12(b)(6). United States ex rel. Gelbman v. City of New York, Case No. 18-3162, 2019 U.S. App. LEXIS 30889 (2d Cir. Oct. 17, 2019).
- [The Granston Memo in Tension:  Third Circuit Allows DOJ’s Dismissal of FCA Claim without a Hearing; Sen. Grassley Wants DOJ to Pump the Brakes](https://www.dorseyfca.com/the-granston-memo-in-tension-third-circuit-allows-dojs-dismissal-of-fca-claim-without-a-hearing-sen-grassley-wants-doj-to-pump-the-brakes/) - The Department of Justice can move to dismiss a whistleblower’s claim under the False Claims Act without first holding an in-person hearing, the Third Circuit recently ruled in Chang v. Children’s Advocacy Center of Delaware, No. 18-2311 (3d Cir. Sept. 12, 2019). The FCA requires that a qui tam relator have “an opportunity for a
- [D.C. Circuit Weighs in on the FCA’s Anti-Retaliation Statute](https://www.dorseyfca.com/d-c-circuit-weighs-in-on-the-fcas-anti-retaliation-statute/) - Last month, the D.C. Circuit revived a False Claims Act (“FCA”) retaliatory discrimination claim by a former employee of Howard University contending that she was fired by the University for objecting both internally and externally to the University’s alleged failure to maintain the humane laboratory animal living conditions on which the University’s receipt of federal
- [Relator Failed to Sufficiently Plead its FCA Action by Relying on Big Data Alone, Resulting In Big Dismissal](https://www.dorseyfca.com/relator-failed-to-sufficiently-plead-its-fca-action-by-relying-on-big-data-alone-resulting-in-big-dismissal/) - In early August, the U.S. District Court for the Western District of Texas granted a hospital system’s motion to dismiss a False Claims Act case that illustrates the increasing intersections in FCA litigation between data analytics and health care providers’ efforts to increase revenue through aggressive management of coding and billing practices. United States ex
- [Granston Memo in Action: Eighth Circuit Affirms Government Dismissal of FCA Claims Related to Minnesota Bridge Collapse](https://www.dorseyfca.com/granston-memo-in-action-eighth-circuit-affirms-government-dismissal-of-fca-claims-related-to-minnesota-bridge-collapse/) - Just days after the twelfth anniversary of the Minnesota 35W bridge collapse, the Eighth Circuit summarily affirmed the dismissal of a False Claims Act case alleging that Minnesota government officials conspired to submit false claims and obtain $250 million in federal funding. United States ex rel. Davis v. Hennepin Cty., No: 19-2298 (8th Cir. Aug.
- [False Claims Act: New Developments for an Old Law](https://www.dorseyfca.com/false-claims-act-new-developments-for-an-old-law/) - The past 18 months have been a (relatively) wild time for the False Claims Act — on the books since 1863. In FY2018 the Department of Justice obtained more than $2.8 billion in settlements and judgments from cases involving fraud and false claims against the United States government. Add to this staggering statistic the fallout
- [Alleged Violations of Government Data Security Requirements Yield FCA Settlement](https://www.dorseyfca.com/alleged-violations-of-government-data-security-requirements-yield-fca-settlement/) - On May 31, 2019, U.S. Attorney Stephen McAllister of the District of Kansas announced a $250,000 settlement with Coffey Health System to resolve a False Claims Act case. The case arose from allegations that the hospital’s patient data security was insufficient to justify an incentive payment from the federal government. The two whistleblowers each will
- [$34 Million Reversal: First Circuit Overturns Its Precedent and Redirects Relator’s FCA Award to Another](https://www.dorseyfca.com/34-million-reversal-first-circuit-overturns-its-precedent-and-redirects-relators-fca-award-to-another/) - Earlier this month, the U.S. Court of Appeals for the First Circuit overturned its own precedent to hold the FCA’s first-to-file rule is “non-jurisdictional.” In so doing, the First Circuit flipped the district court’s award of $34 million from one whistleblower to another. United States v. Millenium Labs., Inc., No. 17-1106, 2019 U.S. App. LEXIS
- [Sutter Health LLC Pays $30 Million to Settle Alleged Overpayment of Medicare Advantage Funds, but Faces Similar Allegations in Separate Qui Tam](https://www.dorseyfca.com/sutter-health-llc-pays-30-million-to-settle-alleged-overpayment-of-medicare-advantage-funds-but-faces-similar-allegations-in-separate-qui-tam/) - On April 12, 2019, the U.S. Department of Justice announced Sutter Health LLC—along with its affiliates Sutter East Bay Medical Foundation, Sutter Pacific Medical Foundation, Sutter Gould Medical Foundation, and Sutter Medical Foundation—would pay $30 million to settle allegations they provided inaccurate information about Medicare Advantage Plan beneficiaries in order to receive inflated payments. The
- [Fifth Circuit Affirms: Res Judicata Bars FCA Retaliation Suit](https://www.dorseyfca.com/fifth-circuit-affirms-res-judicata-bars-fca-retaliation-suit/) - Last week, the U.S. Court of Appeals for the Fifth Circuit considered an appeal from the Eastern District of Louisiana, which dismissed appellants’ FCA retaliation claims based on res judicata. Res judicata, or “claim preclusion,” is the principle that a matter may not be re-litigated once it has been decided on the merits. Appellants had
- [Supreme Court Considers Whether to Extend FCA Statute of Limitation](https://www.dorseyfca.com/supreme-court-considers-whether-to-extend-fca-statute-of-limitation/) - On Tuesday, March 19, the Supreme Court considered whether to extend the FCA’s alternate 10-year statute of limitations to cases in which the government does not intervene. The case, Cochise Consultancy Inc. v. United States, ex rel. Hunt, involves a whistleblower’s qui tam action alleging that two defense contractors defrauded the government. The case centers
- [Another Qui Tam Suit Alleging a Scheme to Defraud by Reporting Inflated Drug Prices Survives Motion to Dismiss](https://www.dorseyfca.com/another-qui-tam-suit-alleging-a-scheme-to-defraud-by-reporting-inflated-drug-prices-survives-motion-to-dismiss/) - Within the last five years, district courts in the Seventh Circuit have repeatedly denied motions to dismiss qui tam lawsuits brought under the FCA that allege a scheme to defraud government health programs by reporting inflated “usual and customary” prices for prescription drugs. By contrast, at least one district court in the Sixth Circuit recently
- [Tribal Employees Cannot Shake FCA Claims Pleaded with Particularity When Sued in Their Personal Capacities](https://www.dorseyfca.com/tribal-employees-cannot-shake-fca-claims-pleaded-with-particularity-when-sued-in-their-personal-capacities/) - Seven years after filing their initial complaint, a Montana federal court ruled that plaintiffs’ FCA action—at least on some claims and against some defendants—may finally proceed. Cain v. Salish Kootenai Coll., Inc., No. CV-12-181-M-BMM, 2019 U.S. Dist. LEXIS 26955 (D. Mont. Feb. 20, 2019). In 2012, plaintiffs, as relators in a qui tam action, alleged
- [For FY2018, Justice Department Touts Nearly $3 Billion in False Claims Act Recoveries, Mostly From Qui Tams and Alleged Healthcare Frauds](https://www.dorseyfca.com/for-fy2018-justice-department-touts-nearly-3-billion-in-false-claims-act-recoveries-mostly-from-qui-tams-and-alleged-healthcare-frauds/) - The Justice Department announced in a recent press release that it obtained more than $2.8 billion in settlements and judgments from cases involving fraud and false claims against the government. The vast majority of this amount—$2.1 billion—came from lawsuits filed by whistleblowers, or “relators” suing on behalf of the government, under the qui tam provisions
- [DOJ Levels False Claims Act at Pharmacies to Combat Opioid Crisis](https://www.dorseyfca.com/doj-levels-false-claims-act-at-pharmacies-to-combat-opioid-crisis/) - This month the Department of Justice brought a “first of its kind” action against two pharmacies, their owner, and three pharmacists for allegedly dispensing and billing Medicare for prescriptions in violation of both the Controlled Substances Act (CSA) and the False Claims Act (FCA). See United States v. Oakley Pharmacy, Inc., et al., No. 2:19-cv-00009
- [Relator Strikes Twice Against Walgreens](https://www.dorseyfca.com/relator-strikes-twice-against-walgreens/) - For those who pay close attention to FCA settlements, the January 22 press release from the United States Attorney for the Southern District of New York of a $60 million settlement against Walgreens related to its Prescription Savings Club (“PSC”) program should not come as a complete surprise. In an earlier press release, almost two
- [In One Decision, The Eleventh Circuit Creates Two Circuit Splits](https://www.dorseyfca.com/in-one-decision-the-eleventh-circuit-creates-two-circuit-splits/) - Rejecting the views of the Fourth and Tenth Circuits, the Eleventh Circuit held the FCA’s three year statute of limitations period in § 3731(b)(2) applies to a relator’s claim even when the United States declines to intervene, and in so doing held it is the knowledge of a government official, not the relator, that triggers
- [Third Circuit:  False Claims Act Liability Premised on an Anti-Kickback Statute Violation Requires Proof that at Least One Federal Claim Resulted from an Improper Referral or Recommendation](https://www.dorseyfca.com/third-circuit-false-claims-act-liability-premised-on-an-anti-kickback-statute-violation-requires-proof-that-at-least-one-federal-claim-resulted-from-an-improper-referral-or-recommendation/) - Federal scrutiny of charities that assist patients with accessing prescription drugs has increased with rising prescription drug prices. Some prescription drug charities receive funding from medical providers or drug manufacturers, which can raise questions about whether the charities’ funders are using the charities to generate improper recommendations or referrals. In December 2017, the U.S. Department of
- [Two Recent Justice Department Memoranda May Have Significant Consequences for Pending and Future False Claims Act Enforcement](https://www.dorseyfca.com/two-recent-justice-department-memoranda-may-have-significant-consequences-for-pending-and-future-false-claims-act-enforcement/) - In recent weeks, the United States Department of Justice (“DOJ”) issued two memoranda that might change the calculus of False Claims Act (“FCA”) cases. The memoranda at a minimum provide organizations with new—or at least invigorated—defenses to qui tam actions and civil enforcement matters. First, on January 10, Michael Granston, Director of DOJ’s Civil Frauds section,
- [Applying Escobar’s Materiality Standard, Florida Federal Court Reverses $350 Million False Claims Act Verdict against a Nursing Home Operator](https://www.dorseyfca.com/applying-escobars-materiality-standard-florida-federal-court-reverses-350-million-false-claims-act-verdict-against-a-nursing-home-operator/) - If the government does not take action and continues to pay for Medicare/Medicaid claims after it learns of non-compliance related to the claims, is the non-compliance material to the government’s decision to pay? This is a question being answered in the negative by courts across the country, who have concluded that the government (or a
- [HIPAA As a Basis for FCA Liability? One Court Says Yes](https://www.dorseyfca.com/hipaa-as-a-basis-for-fca-liability-one-court-says-yes/) - Until very recently, no case existed in which FCA liability arose from a violation of the Health Insurance Portability and Accountability Act (“HIPAA”). But in United States v. America at Home Healthcare and Nursing Services, Ltd., Judge John Robert Blakely of the United States District Court for the Northern District of Illinois, Eastern Division, allowed
- [Early Resolution of FCA Civil Damages Under the Eighth Amendment's Excessive Fines Clause? A Pending Case in Washington May Provide the Answer](https://www.dorseyfca.com/early-resolution-of-fca-civil-damages-under-the-eighth-amendments-excessive-fines-clause-a-pending-case-in-washington-may-provide-the-answer/) - The False Claims Act authorizes civil penalties between $10,781 to $21,563 per false claim, as well as three times the amount of damages which the government sustains (i.e. treble damages). The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Supreme Court of
- [Government Contractor Awarded Attorney Fees for Defending Against "Unreasonable" FCA Claim](https://www.dorseyfca.com/government-contractor-awarded-attorney-fees-for-defending-against-unreasonable-fca-claim/) - The U.S. Court of Appeals for the Sixth Circuit recently concluded that a contractor should obtain an award of attorney fees for having to defend against an “unreasonable” False Claims Act (“FCA”) suit. In United States ex. rel. Wall v. Circle C. Constr. LLC, the Government sued a contractor that built warehouses for the U.S. Army. During
- [Consultant Guilty of Illegal Kickbacks By “Referring” Doctors’ Patients to Another Medical Provider in Exchange for Remuneration](https://www.dorseyfca.com/consultant-found-guilty-of-illegal-kickbacks-by-referring-doctors-patients-to-another-medical-provider-in-exchange-for-remuneration/) - Under 42 U.S.C. § 1320a-7b(b)(1)(A) it is a felony for a physician to solicit or receive a kickback “in return for referring” a Medicaid or Medicare patient to another medical provider. But as a recent decision by the Eighth Circuit in United States v. Iqbal demonstrates, physicians are not the only ones capable of making illegal
- [Eighth Circuit Rejects Sovereign Immunity Defense to FCA Qui Tam Action](https://www.dorseyfca.com/eighth-circuit-rejects-sovereign-immunity-defense-to-fca-qui-tam-action/) - Last month the Eighth Circuit considered and rejected an Eleventh Amendment sovereign immunity defense to a qui tam action under the False Claims Act. In United States ex rel. Fields v. Bi-State Development Agency, No. 16-3783, 2017 U.S. App. LEXIS 13925 (8th Cir. August 1, 2017), a former employee of Bi-State alleged that the defendant
- [Genesis Healthcare Settlement with Federal Government](https://www.dorseyfca.com/genesis-healthcare-settlement-with-federal-government/) - On June 16, 2017, The Department of Justice (“DOJ”) announced a $53.6 million dollar settlement with Genesis Healthcare Inc. (“Genesis”) over six federal whistleblower lawsuits alleging that subsidiaries of the rehabilitation and transitional care provider violated the False Claims Act (“FCA”). The original qui tam plaintiffs, former employees of companies acquired by Genesis, will receive
- [Court Rules that "Upon Information And Belief" Allegations of FCA Violations Leveled Against Competitor Fail to Withstand Pleading Requirements](https://www.dorseyfca.com/court-rules-that-upon-information-and-belief-allegations-of-fca-violations-leveled-against-competitor-fail-to-withstand-pleading-requirements/) - A Federal court in Ohio recently dismissed a qui tam lawsuit brought under the False Claims Act by Kustom Products, Inc. against Hupp & Associates, Inc., a defense contractor, and in so doing provided judicial treatment of the common practice of alleging facts "upon information and belief." United States ex rel. Kustom Prods. v. Hupp & Assocs.,
- [CMS Issues New SRDP Forms](https://www.dorseyfca.com/cms-issues-new-srdp-forms/) - The Centers for Medicare and Medicaid Services (“CMS”) issued new Self-Referral Disclosure Protocol (“SRDP”) forms, and, beginning June 1, 2017, these SRDP forms will be mandatory for those parties submitting voluntary self-disclosures of actual or potential violations of the federal physician self-referral law (the “Stark Law”) through the SRDP. The Patient Protection and Affordable Care
- [Energy & Process Corp. Settles Whistleblower Action Related to Construction of Nuclear Waste Treatment Facility](https://www.dorseyfca.com/energy-process-corp-settles-whistleblower-action-related-to-construction-of-nuclear-waste-treatment-facility/) - On Monday, April 24, the U.S. Department of Justice announced that Energy & Process Corp. agreed to pay $4.6 million to settle False Claims Act allegations concerning the construction of a large nuclear waste treatment facility in South Carolina. The allegations came to light as part of a whistleblower action brought by a former employee
- [Court Examines Standard for Approval of Settlement of Qui Tam Over a Relator's Objection](https://www.dorseyfca.com/court-examines-standard-for-approval-of-settlement-of-qui-tam-over-a-relators-objection/) - The False Claims Act (FCA) allows plaintiffs/relators to bring qui tam actions, in which the government may then elect to intervene. The FCA also provides that “[t]he Government may settle a [qui tam] action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the
- [Supreme Court Applies Escobar to Reinstate Implied Certification Suit Against Bank Based on Compliance With Fed Rules](https://www.dorseyfca.com/supreme-court-applies-escobar-to-reinstate-implied-certification-suit-against-bank-based-on-compliance-with-fed-rules/) - On Tuesday, February 21, 2017, the Supreme Court summarily vacated the judgment in Bishop v. Wells Fargo & Co. and remanded the case to the Second Circuit in light of the Court’s recent decision in Universal Health Servs. v. United States ex rel. Escobar, which recognized the implied certification liability theory in FCA suits. In
- [Alleging Improper Use of Funds Legitimately Obtained from the Government Insufficient to State FCA Retaliation Claim](https://www.dorseyfca.com/alleging-improper-use-of-funds-legitimately-obtained-from-the-government-insufficient-to-state-fca-retaliation-claim/) - The U.S. District Court for the Southern District of Texas has dismissed an FCA retaliation claim brought by a nurse who claimed to have blown the whistle on misuse of funds at a hospital that received significant federal revenue. In Endicott v. Oakbend Medical Center, the nurse alleged she was fired after she complained that
- [Northern District of Illinois Dismisses Whistleblower’s FCA Suit for Failing to Connect Allegations of Misconduct with Submission of False Claims](https://www.dorseyfca.com/northern-district-of-illinois-dismisses-whistleblowers-fca-suit-for-failing-to-connect-allegations-of-misconduct-with-submission-of-false-claims/) - In United States ex rel. Keen v. Teva Pharmaceuticals USA, Inc., relator Janice Keen sued her former employer—the pharmaceutical company Teva—for violations of the FCA. According to Ms. Keen, Teva trained its sales force to misleadingly promote and sell a medicine used to treat muscle spasms. Ms. Keen alleged that Teva’s deceptive practices caused physicians
- [First Circuit Rejects Fraud-on-the-FDA Theory of FCA Liability](https://www.dorseyfca.com/first-circuit-rejects-fraud-on-the-fda-theory-of-fca-liability/) - Affirming an earlier order handed down by the United States District Court for the District of Massachusetts, the First Circuit recently denied Plaintiff D’Agostino leave to amend his complaint, finding the proposed claims were futile. D’Agostino, et al. v. EV3, Inc. et al., 2016 WL 7422943 (1st Cir. Dec. 23, 2016). D’Agostino’s complaint alleges False Claims
- [OIG Creates New AKS Safe Harbors, Codifies Others](https://www.dorseyfca.com/oig-creates-new-aks-safe-harbors-codifies-others/) - On January 6, 2017, two new safe harbors to the federal anti-kickback statute (the “AKS”) will become effective pursuant to a final rule published by the United States Department of Health and Human Services Office of the Inspector General (the “OIG”) on December 7, 2016. The final rule also codifies safe harbors for certain AKS
- [Jury Verdict in Declined Civil FCA Action Need Not Bar Criminal Prosecution for Same Conduct](https://www.dorseyfca.com/jury-verdict-in-declined-civil-fca-action-need-not-bar-criminal-prosecution-for-same-conduct/) - The qui tam provisions of the False Claims Act allow private citizens to file FCA claims on behalf of the government. The government may elect to intervene in the action—or it may not. The United States District Court for the Western District of Virginia held earlier this month that when the government does not intervene, it
- [Supreme Court Concludes that Violation of FCA Seal Provision Does Not Necessarily Mandate Dismissal of Qui Tam Suits](https://www.dorseyfca.com/supreme-court-concludes-that-violation-of-fca-seal-provision-does-not-necessarily-mandate-dismissal-of-qui-tam-suits/) - The Supreme Court held yesterday that a violation of the False Claims Act’s seal provision does not mandate dismissal of a relator’s complaint. Justice Kennedy authored the Court’s opinion in the unanimous 8-0 decision. State Farm was accused of defrauding the government by falsely classifying wind damage caused by Hurricane Katrina as flood damage, which
- [Supreme Court Hears Argument About Violation of FCA Seal Provision](https://www.dorseyfca.com/supreme-court-hears-argument-about-violation-of-fca-seal-provision/) - This month the Supreme Court heard oral argument in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, a case centered on allegations dating back to Hurricane Katrina. The Fifth Circuit had previously upheld a jury verdict finding State Farm liable for $758,000 in damages based on a claim that State Farm
- [Omnicare Inc. Settles Kickback Allegations for $28 Million](https://www.dorseyfca.com/omnicare-inc-settles-kickback-allegations-for-28-million/) - The United States Justice Department (DOJ) announced this week that Omnicare, Inc. (Omnicare), the largest nursing home pharmacy in the United States, will pay approximately $28 million dollars to resolve charges that it received kickbacks from Abbott Laboratories (Abbott) to promote Abbott’s anti-epileptic drug, Depakote, to nursing home patients. According to the press release, Omnicare,
- [Former CEO of Health System Agrees to Pay $1 million to Settle False Claims Act Case with U.S. Department of Justice](https://www.dorseyfca.com/former-ceo-of-health-system-agrees-to-pay-1-million-to-settle-false-claims-act-case-with-u-s-department-of-justice/) - In the most recent example of its continued effort to hold individuals accountable for corporate misconduct, the U.S. Department of Justice (“DOJ”) announced on September 27, 2016, that the former CEO of Tuomey Healthcare System has agreed to pay $1 million to settle claims arising from his involvement in the hospital’s violations of the Stark
- [New Orleans Federal Court Dismisses Relators’ Improper Billing Claims against FEMA Temporary Housing Contractor Due to Insufficient Evidence](https://www.dorseyfca.com/new-orleans-federal-court-dismisses-relators-improper-billing-claims-against-fema-temporary-housing-contractor-due-to-insufficient-evidence/) - On September 14, 2016, the United States District Court for the Eastern District of Louisiana granted a government contractor’s summary judgment motion and dismissed a lawsuit brought against it by False Claims Act relators (“Relators”) because Relators failed to identify evidence supporting the existence of a genuine issue of material fact regarding their claims that
- [Eighth Circuit Determines that Compliance with Reasonable Interpretation of Government Regulation Sufficient to Avoid FCA Liability (Absent a Government Warning to the Contrary)](https://www.dorseyfca.com/eighth-circuit-determines-that-compliance-with-reasonable-interpretation-of-government-regulation-sufficient-to-avoid-fca-liability-absent-a-government-warning-to-the-contrary/) - The Centers for Medicare and Medicaid Services (“CMS”) establishes requirements for how medical procedures must be performed for a medical provider to seek payment for those procedures. Seeking payment without properly performing the procedure might expose the provider to alleged liability under the False Claims Act (“FCA”). But what if the requirements for the procedure
- [Texas Diagnostic Imaging Service Settles FCA Allegations for $3.5 Million; Whistle-Blower to Receive $596,700](https://www.dorseyfca.com/texas-diagnostic-imaging-service-settles-fca-allegations-for-3-5-million-whistle-blower-to-receive-596700/) - A recent settlement illustrates the substantial recovery available to whistle-blowers under the FCA’s qui tam provisions. Those provisions allow a qui tam plaintiff to receive typically between 15 percent and 25 percent of the proceeds of an FCA settlement. 31 U.S.C. § 3730(d). The settling party—Preferred Imaging—is a Dallas-based company that operates independent diagnostic facilities in Texas, Illinois, and
- [DOJ Files FCA Complaint Against Recipient of Grant Funding](https://www.dorseyfca.com/doj-files-fca-complaint-against-recipient-of-grant-funding/) - The FCA began as a response to procurement fraud by military contractors during the Civil War. In the intervening years, its reach has extended and increasingly the government is using the FCA as a tool in the context of grant programs. A recent civil complaint filed by the U.S. Attorney's Office for the Eastern District of
- [Pharmaceutical Manufacturer's Possible Settlement Shows Long-Arm of FCA](https://www.dorseyfca.com/pharmaceutical-manufacturers-possible-settlement-shows-long-arm-of-fca/) - On Tuesday, August 2, 2016, pharmaceutical and biotech company Shire PLC filed a Form 8-K announcing a possible resolution to an ongoing FCA investigation into the sales and marketing tactics of Shire’s “Dermagraft” skin product. The episode illustrates how the FCA can have significant consequences for mergers and acquisitions, imposing residual obligations years after an
- [Senate Finance Committee Explores Revisions to Stark Law](https://www.dorseyfca.com/senate-finance-committee-explores-revisions-to-stark-law/) - At a July 12, 2016 hearing entitled “Examining the Stark Law: Current Issues and Opportunities,” members of the U.S. Senate Finance Committee expressed openness to potentially significant amendments to the Stark Law aimed at alleviating the threat of potentially devastating liability the Stark Law can impose on health care providers that pursue value-based payment models.
- [District Court Grants Motion to Dismiss Relators’ Claims in One of the First Post-Escobar Decisions](https://www.dorseyfca.com/district-court-grants-motion-to-dismiss-relators-claims-in-one-of-the-first-post-escobar-decisions/) - The District Court for the Eastern District of Washington recently granted the defendants’ Motion to Dismiss relators’ claims in a consolidated False Claims Act lawsuit against Monaco Enterprises, Inc. (“MEI”). MEI provides security and fire detection products, installation, and services to a variety of customers, including the U.S. military. The lawsuit, brought by former employees
- [First Circuit Affirms Dismissal For CVS Caremark Under Public Disclosure Bar](https://www.dorseyfca.com/first-circuit-affirms-dismissal-for-cvs-caremark-under-public-disclosure-bar/) - The FCA’s public disclosure bar precludes liability when a relator’s allegations have been publicly disclosed in a list of statutorily enumerated sources. Last week, the First Circuit added to the growing jurisprudence both interpreting the bar and an exception to the bar: the original source exception. In United States ex rel. Winkelman v. CVS Caremark
- [Federal Civil Penalties Going Up, Way Up.](https://www.dorseyfca.com/federal-civil-penalties-going-up-way-up/) - The United States Department of Justice (“DOJ”) published an Interim Final Rule on June 30th nearly doubling the per-claim civil penalties for violations of a number of laws, including the False Claims Act (FCA), the Program Fraud Civil Remedies Act, and the Anti-Kickback Act. For example, the FCA provides for mandatory per-claim penalties on top
- [Construction Subcontractor Settles FCA Allegations for $2.8 Million](https://www.dorseyfca.com/construction-subcontractor-settles-fca-allegations-for-2-8-million/) - A recent settlement illustrates the broad reach of the FCA and the substantial liability that “mere retention” of an overpayment can impose on contractors several steps removed from a government contract. The dispute involved alleged overpayments made to Bartlett Holdings Inc. (d/b/a BHI Energy/Sun Technical Services) during its performance as a subcontractor on a Federal
- [Implied Certification, Escobar, and the Impact on Healthcare Providers](https://www.dorseyfca.com/implied-certification-escobar-and-the-impact-on-healthcare-providers/) - On June 16, 2016, the Supreme Court issued a unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar upholding the “implied certification” theory of liability under the False Claims Act (“FCA”) but adopting a rigorous materiality standard for determining liability in such cases. This case is a game changer. For years,
- [D.C. Circuit Upholds Public-Disclosure-Bar Dismissal Based On Information Posted to Websites](https://www.dorseyfca.com/d-c-circuit-upholds-public-disclosure-bar-dismissal-based-on-information-posted-to-websites/) - Last week, the U.S. Court of Appeals for the D.C. Circuit upheld a district court’s dismissal of a qui tam action under the oft-litigated, “public disclosure bar,” where the transactions that gave rise to an inference of fraud were “available” on the internet. See United States ex rel Oliver v. Phillip Morris USA Inc., No.
- [Supreme Court Upholds Implied Certification Theory of Liability; Imposes Limitations on its Reach](https://www.dorseyfca.com/supreme-court-upholds-implied-certification-theory-of-liability-imposes-limitations-on-its-reach/) - In a unanimous decision, the Supreme Court today charted a middle course between competing interpretations of the scope of False Claims Act. Universal Health Servs., Inc. v. United States ex rel. Escobar, Case No. 15-7 (June 16, 2016). The Court upheld the viability of the so-called “implied-certification” theory under the FCA, but simultaneously clarified the
- [Second Circuit Finds FCA Claims about Night-Vision Goggles Lack Sufficient Particularity](https://www.dorseyfca.com/second-circuit-finds-fca-claims-about-night-vision-goggles-lack-sufficient-particularity/) - On Wednesday, May 25, 2016, the Second Circuit affirmed the district court's decision to dismiss FCA claims alleging that defendants supplied $1.5 billion worth of deficient night-vision goggles to the U.S. military. United States ex rel. Ladas v. Exelis Inc. et al., No. 14-4155 (2d Cir. May 25, 2016). The court found that the relator,
- [Former Medicaid Auditor for D.C. Government Permitted to Proceed with FCA Retaliation Claim](https://www.dorseyfca.com/former-medicaid-auditor-for-d-c-government-permitted-to-proceed-with-fca-retaliation-claim/) - The Federal District Court for the District of Columbia recently ruled that a former director of Medicaid audits in Washington D.C. can proceed with retaliation claims alleging he was fired for trying to stop his former bosses from covering up $100 million in improper payments to medical providers. Paul Hicks was hired by District of Columbia’s
- [Failure to Disclose Best Pricing: Pharmaceutical Companies Settle FCA Claims for $784 Million](https://www.dorseyfca.com/failure-to-disclose-best-pricing-pharmaceutical-companies-settle-fca-claims-for-784-million/) - The Department of Justice announced late last month that pharmaceutical manufacturers Wyeth and Pfizer would pay $784 million to resolve a False Claims Act investigation and qui tam lawsuit arising from Wyeth’s failure to disclose its best pricing of drugs to the government. The case was brought under the FCA’s qui tam provisions; the relators’
- [District Court Rejects “Worthless Services” FCA Claim, Interprets First-to File Bar and Res Judicata in FCA Context](https://www.dorseyfca.com/district-court-rejects-worthless-services-fca-claim-interprets-first-to-file-bar-and-res-judicata-in-fca-context/) - Earlier this month, the U.S. District Court for the Eastern District of Virginia dismissed a 2-count False Claims Act (FCA) complaint against Unisys Corporation. United States ex rel. Soodavar v. Unisys Corp., 2016 WL 1367163 (April 5, 2016) (“Soodavar”). The case addresses several important limits on FCA claims. Count I alleged that certain Unisys employees
- [DOJ Intervenes In FCA Suit Against Subcontractor That Allegedly Failed to Comply With Specifications](https://www.dorseyfca.com/doj-intervenes-in-fca-suit-against-subcontractor-that-allegedly-failed-to-comply-with-specifications/) - A recently unsealed False Claims Act case in Maine alleges a roof contractor knowingly failed to use materials that complied with the prime contracts for renovation of government buildings. According to the complaint filed by the United States in Emery v. Roof Systems of Maine Inc., 2:14-cv-00483-DBH (D. Me.), Roof Systems of Maine worked as
- [Ninth Circuit holds that Fannie Mae and Freddie Mac are not officers, employees, or agents of the United States under 31 U.S.C. § 3729(b)(2)(A)(i) of the False Claims Act](https://www.dorseyfca.com/ninth-circuit-holds-that-fannie-mae-and-freddie-mac-are-not-officers-employees-or-agents-of-the-united-states-under-31-u-s-c-§-3729b2ai-of-the-false-claims-act/) - On February 22, the Ninth Circuit affirmed the dismissal of an FCA claim brought by relators alleging that various lenders and loan servicers made false certifications to Fannie Mae and Freddie Mac, concluding that claims presented to Fannie Mae or Freddie Mac could not give rise to liability under § 3729(b)(2)(A)(i) of the FCA. See
- [District Court Rejects Government’s FCA Claim Seeking Return of Retained Benefits; Decides that Agency Policy Guidance Did Not Create an "Obligation” Under the Act](https://www.dorseyfca.com/district-court-rejects-governments-fca-claim-seeking-return-of-retained-benefits-decides-that-agency-policy-guidance-did-not-create-an-obligation-under-the-act/) - In an opinion issued earlier this month, the United States District Court for the Eastern District of Oklahoma refused to impose False Claims Act liability on a defendant who retained and invested his mother’s Social Security benefits after she went missing. The case adds to the growing body of law on the word “obligation” as
- [CMS Finalizes Rule Requiring Healthcare Providers to Return Overpayments](https://www.dorseyfca.com/cms-finalizes-rule-requiring-healthcare-providers-to-return-overpayments/) - Late last week, the Centers for Medicare & Medicaid Services (CMS) published its final rule regulating how healthcare providers must report and return overpayments. This rule implements the Affordable Care Act’s requirement that healthcare providers who receive an overpayment from Medicare return the overpayment within 60 days of its identification. Overpayments not returned within the
- [University of Massachusetts Medical School Not a "Person" Under FCA; 1st Circuit Adopts "Arm-of-the-State" Test](https://www.dorseyfca.com/university-of-massachusetts-medical-school-not-a-person-under-fca-1st-circuit-adopts-arm-of-the-state-test/) - In an opinion issued on January 27, 2016, the United States Court of Appeals for the First Circuit affirmed the dismissal of a qui tam lawsuit against the University of Massachusetts, holding that the University was "indistinguishable" from a state agency and, therefore, not a "person" subject to potential liability under the False Claims Act, 31
- [DuPont Appeal May Clarify What Constitutes a Reverse False Claim “Obligation”](https://www.dorseyfca.com/dupont-appeal-may-clarify-what-constitutes-a-reverse-false-claim-obligation/) - On January 20, a federal district court in Louisiana certified for appeal its 2014 ruling denying defendant DuPont’s motion for summary judgment, thereby permitting DuPont to seek appellate review of the district court’s ruling. Simoneaux v. E.I. du Pont Nemours & Co., No. 12-cv-00219 (M.D. La. Jan. 20, 2016). Central to the district court’s now-certified
- [Nashville Pharmacy Services, LLC Settles FCA Allegations](https://www.dorseyfca.com/nashville-pharmacy-services-llc-settles-fca-allegations/) - Last week the Department Of Justice announced a settlement agreement with Nashville Pharmacy Services, LLC (“NPS”) and NPS majority owner Kevin Hartman. Under the agreement, NPS and Mr. Hartman will pay up to $7.8 million to settle a lawsuit alleging violations of the False Claims Act. The settlement agreement does not include any admission of
- [First Circuit Permits Supplementation of Complaint to Cure First-to-File Jurisdictional Defects](https://www.dorseyfca.com/first-circuit-permits-supplementation-of-complaint-to-cure-first-to-file-jurisdictional-defects/) - The FCA first-to-file bar provides that if an action involving the same subject matter is already pending, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). Courts are thus deprived of jurisdiction to entertain opportunistic qui tam lawsuits based on
- [Sixth Circuit Joins Sister Circuits In Using Arm-Of-The-State Analysis To Define “Person” Under The False Claims Act](https://www.dorseyfca.com/sixth-circuit-joins-sister-circuits-in-using-arm-of-the-state-analysis-to-define-person-under-the-false-claims-act/) - The FCA imposes liability on “any person” that makes a false statement in violation of the Act, 31 U.S.C. § 3729(a)(1). Although the Act itself does not define “person,” the Supreme Court has said only that a person cannot include a state or state agency. See Vermont Agnecy of Natural Resources v. Stevens, 529 U.S.
- [California Court Permits FCA Claim Involving Medicare “Referral and Regeneration” Scheme to Proceed Against Healthcare CEO](https://www.dorseyfca.com/california-court-permits-fca-claim-involving-medicare-referral-and-regeneration-scheme-to-proceed-against-healthcare-ceo/) - In a recent opinion, the Northern District of California allowed FCA claims to proceed against the CEO of a skilled nursing facility operator. John Orten, the whistleblower in the suit, was a former nursing home administrator for North American Health Care, Inc. (NAHC). Orten claimed that he had witnessed the CEO of NAHC, John Sorensen,
- [Education Management Corporation Settles Significant FCA Claims](https://www.dorseyfca.com/education-management-corporation-settles-significant-fca-claims/) - Education Management Corporation (EDMC), a Pittsburgh-based company that operates for-profit educational institutions, has agreed to pay $96 million in what attorneys involved in the case claim to be the largest settlement ever in a False Claims Act case involving the Department of Education. The settlement was announced on November 16, 2015, and it resolved four
- [Novartis Pharmaceuticals Settles $390MM FCA Allegations](https://www.dorseyfca.com/novartis-pharmaceuticals-settles-390mm-fca-allegations/) - Drugmaker Novartis Pharmaceuticals has agreed in principle to pay $390MM (including $20MM in civil forfeitures) to the Department of Justice. This payment, in addition to modification and an extension of Novartis’s existing Corporate Integrity Agreement (“CIA”), settles claims that the company paid illegal kickbacks to specialty pharmacy companies in order to induce the pharmacies to
- [New York Trial Court Dismisses FCA Tax Case against Vanguard; Determines Relator Violated Confidentiality Provisions of State Attorney Ethics Rules](https://www.dorseyfca.com/new-york-trial-court-dismisses-fca-tax-case-against-vanguard-determines-relator-violated-confidentiality-provisions-of-state-attorney-ethics-rules/) - On November 13, 2015, the New York State Supreme Court dismissed a qui tam action brought under New York State Finance Law §§ 187-194 (“False Claims Act”) against The Vanguard Group Inc., The Vanguard Group of Mutual Funds, and Vanguard Marketing Corporation (collectively, “Vanguard”) by a former Vanguard in-house tax attorney because the Court found
- [District Court Rejects FCA Claim Against Healthcare Provider That Submitted False Claims But Did So Without Necessary Mental State](https://www.dorseyfca.com/district-court-rejects-fca-claim-against-healthcare-provider-that-submitted-false-claims-but-did-so-without-necessary-mental-state/) - Healthcare provider Fresenius Medical Care North America claimed victory in a False Claims Act (“FCA”) lawsuit recently when a federal district court ruled that there was no evidence that its practice of billing for “overfill” medications was anything more than negligent, and therefore did not satisfy the knowledge requirement of the FCA. On October 30,
- [Tuomey Settles, Post-Judgment, Alleged Violations of FCA and Stark Law](https://www.dorseyfca.com/tuomey-settles-post-judgment-alleged-violations-of-fca-and-stark-law/) - The Department of Justice and Tuomey Healthcare have announced a $72.4 million settlement in a lawsuit that the DOJ touts as “another achievement for the [DOJ and DHS] Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative.” The settlement follows a 2013 trial in which a jury found Tuomey had violated the False Claims
- [Eighth Circuit Vacates Relators’ FCA Settlement Recovery; Concludes that the FCA “Allows Relators to Recover a Percentage of the Proceeds of the Settlement of ‘the Claim’ Brought by the Relators, and Only That Claim”](https://www.dorseyfca.com/eighth-circuit-vacates-relators-fca-settlement-recovery-concludes-that-the-fca-allows-relators-to-recover-a-percentage-of-the-proceeds-of-the-settlement-of-the-claim/) - The U.S. Court of Appeals for the Eighth Circuit recently vacated an award of settlement proceeds to relators of several related qui tam actions because the district court failed to make factual findings as to whether the government’s settlement with one of the defendants was based on claims that factually overlapped with the claims brought
- [Supreme Court Asked To Clarify Application of Rule 9(b) in FCA Cases](https://www.dorseyfca.com/supreme-court-asked-to-clarify-application-of-rule-9b-in-fca-cases/) - On September 21, 2015, counsel for AT&T, Inc., and other telecommunications providers asked the U.S. Supreme Court to resolve a circuit split over what relators asserting FCA claims must do to meet Federal Rule of Civil Procedure 9(b)’s requirement of particularity. Pet. for a Writ of Cert., AT&T, Inc. v. United States of America ex
- [Utah Court Dismisses False-Certification Case Alleging Submission of False Certificates of Conformance](https://www.dorseyfca.com/utah-court-dismisses-false-certification-case-alleging-submission-of-false-certificates-of-conformance/) - On September 22, 2015, the U.S. District Court for the District of Utah dismissed a qui tam complaint brought against Triumph Gear Systems, Inc. (“TGS”) and its parent company Triumph Group, Inc. (“Triumph”). In an opinion issued by District Judge Dale A. Kimball, the Court found that the complaint failed at the “most basic level”
- [Judge Dismisses FCA Claim Against City of Chicago; Concludes that "Subsequent Nonperformance of a Future Commitment" Was Not a Falsehood Under FCA](https://www.dorseyfca.com/judge-dismisses-fca-claim-against-city-of-chicago-concludes-that-subsequent-nonperformance-of-a-future-commitment-was-not-a-falsehood-under-fca/) - On September 16, 2015, the U.S. District Court for the Northern District of Chicago dismissed a False Claims Act (FCA) case against the City of Chicago, because the qui tam complaint did not satisfy the relevant pleading standard. In an opinion issued by District Judge Andrea Wood, the court found that the complaint failed to
- [Southern District of New York Opinion Provides Guidance on Satisfying Scienter Requirement Under False Claims Act](https://www.dorseyfca.com/southern-district-of-new-york-opinion-provides-guidance-on-satisfying-scienter-requirement-under-false-claims-act/) - Not every mistake or negligent act gives rise to liability under the False Claims Act. That principle has long been central to the FCA. But the dividing line-- between making a mistake, on the one hand, and “knowingly” or “recklessly” submitting a false claim, on the other--can be murky. In United States ex Rel Kirk
- [New Justice Department Directive Underscores Focus on Individuals—and Importance of Cooperation—in False Claims Act Investigations](https://www.dorseyfca.com/new-justice-department-directive-underscores-focus-on-individuals-and-importance-of-cooperation-in-false-claims-act-investigations/) - In a recent memorandum issued to Main Justice litigating components and United States Attorney’s offices nationwide, Deputy Attorney General Sally Quillan Yates emphasized that “fighting corporate fraud and other misconduct” remains a top priority for the Department and the Federal government’s vow to seek “individual accountability for corporate wrongdoing.” The memorandum, which appears to be
- [Fifth Circuit Concludes That FCA Claim Was Not Covered By Insurance Policy](https://www.dorseyfca.com/fifth-circuit-concludes-that-fca-claim-was-not-covered-by-insurance-policy/) - The U.S. Court of Appeals for the Fifth Circuit recently rejected a shipbuilder’s claim against its insurance company seeking defense and indemnification from a False Claims Act suit. See XL Spec. Ins. Co. v. Bollinger Shipyards, Inc., No. 14-31283, 2015 WL 5052504, 2015 U.S. App. LEXIS 15160 (5th Cir. Aug. 27, 2015). Over a decade
- [Third Circuit Upholds Application of pre-ACA Public Disclosure Bar to FCA Claims Filed after the ACA’s Effective Date](https://www.dorseyfca.com/third-circuit-upholds-application-of-pre-aca-public-disclosure-bar-to-fca-claims-filed-after-the-acas-effective-date/) - On August 26, the United States Court of Appeals for the Third Circuit upheld a district court’s decision to apply the version of the FCA’s public disclosure bar in existence before the enactment of the Patient Protection and Affordable Care Act (“ACA”) to qui tam claims filed after the ACA’s effective date. United States ex
- [Sandia Corporation Agrees to Pay $4.7 Million to Settle Allegations Related to its Lobbying Activities](https://www.dorseyfca.com/sandia-corporation-agrees-to-pay-4-7-million-to-settle-allegations-related-to-its-lobbying-activities/) - On August 21, 2015, the Justice Department announced that Sandia Corporation—owned by Lockheed Martin, the world’s largest defense contractor—agreed to pay $4,790,042 to settle allegations that it violated the Byrd Amendment and the False Claims Act by using federal funds for lobbying activities. The settlement with Sandia is a recent example of the Justice Department’s
- [Fourth Circuit Affirms Dismissal of FCA Complaint Alleging Contracting Fraud](https://www.dorseyfca.com/fourth-circuit-affirms-dismissal-of-fca-complaint-alleging-contracting-fraud/) - In an unpublished decision issued on Thursday, August 13, 2015, the Fourth Circuit Court of Appeals reemphasized Federal Rule of Civil Procedure 9(b)’s “stringent particularity requirement” when it affirmed a lower court’s dismissal of plaintiff’s FCA claim, finding “that the district court did not err in concluding that the amended complaint failed to plead fraud
- [DOJ Settles "First of its Kind" FCA Suit Involving Retention of Overpayments](https://www.dorseyfca.com/doj-settles-first-of-its-kind-fca-suit-involving-retention-of-overpayments/) - On August 3, the Department of Justice announced the first False Claims Act settlement of a case involving a health-care provider’s alleged failure to investigate, identify and refund overpayments from government programs, including Medicare, Medicaid and TRICARE. Such claims (and settlements) may become more common given the recent amendments to the FCA in 2010, which provide
- [Court Concludes that Violation of a Corporate Integrity Agreement May Form the Basis for Reverse False Claim Liability](https://www.dorseyfca.com/court-concludes-that-violation-of-a-corporate-integrity-agreement-may-form-the-basis-for-reverse-false-claim-liability/) - In late July, a federal district court in Pennsylvania denied a motion to dismiss brought by pharmaceutical company Cephalon, Inc., concluding that violations of a corporate integrity agreement (“CIA”) entered into by Cephalon and the federal government could give rise to “reverse false claim” liability. United States ex rel. Boise v. Cephalon, Inc., No. 2:08-cv-00287-TON
- [Fourth Circuit Affirms $237 Million Jury Verdict for Stark and FCA Violations; Rejects Advice-of-Counsel Defense](https://www.dorseyfca.com/fourth-circuit-affirms-237-million-jury-verdict-for-stark-and-fca-violations-rejects-advice-of-counsel-defense/) - On July 2, the U.S. Court of Appeals for the Fourth Circuit affirmed a jury verdict of more than $237 million against Tuomey Healthcare System, a nonprofit hospital in South Carolina, based on Stark Law and False Claims Act violations. United States ex rel. Drakeford v. Tuomey Healthcare System, No. 13-2219 (4th Cir. July 2,
- [Ninth Circuit Concludes that Conviction Precludes Relator Recovery](https://www.dorseyfca.com/ninth-circuit-concludes-that-conviction-precludes-relator-recovery/) - The Ninth Circuit last week held that pursuant to 31 U.S.C. 3730(d)(3) of the False Claims Act (“FCA”), a qui tam relator who is convicted of conduct giving rise to the fraud that is the subject of the FCA lawsuit must be dismissed from the lawsuit and is not entitled to a share in any
- [D.C. Circuit Determines that Physical Possession of Medicare Records Not Required in Implied-Certification Claim Against the District of Columbia](https://www.dorseyfca.com/d-c-circuit-determines-that-physical-possession-of-medicare-records-not-required-in-implied-certification-claim-against-the-district-of-columbia/) - On Friday, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court’s grant of summary judgment in favor of a relator based on the district court’s finding of a violation of the False Claims Act. United States ex rel. Davis v. District of Columbia, No. 14-7060 (D.C. Cir. July 10,
- [Fourth Circuit Clarifies Meaning of False Claims Act’s “Public Disclosure” Bar](https://www.dorseyfca.com/fourth-circuit-clarifies-meaning-of-false-claims-acts-public-disclosure-bar/) - In an important decision regarding the False Claims Act’s much-litigated “public disclosure” bar, the United States Court of Appeals for the Fourth Circuit recently concluded that the disclosure of reports and audits to government officials, without further distribution to the public or dissemination in the “public domain,” does not implicate the FCA’s “public disclosure” provision.
- [First Circuit Takes “Broad View” of Falsity for Pleading Purposes](https://www.dorseyfca.com/first-circuit-takes-broad-view-of-falsity-for-pleading-purposes/) - In a break with other Circuits, the First Circuit recently reaffirmed its broad definition of a “false statement’ under the False Claims Act. United States ex rel. Escobar v. Universal Health Services, Inc., No. 14-1423 (1st Cir. Mar. 17, 2015). Notably, the court continues to take a “broad view of what may constitute a false
- [Sixth Circuit Reminds Government of its Burden to Prove Actual Damages in False Claims Act Litigation](https://www.dorseyfca.com/sixth-circuit-reminds-government-of-its-burden-to-prove-actual-damages-in-false-claims-act-litigation/) - Last week, the United States Court of Appeals for the Sixth Circuit vacated a federal district court’s award of $657 Million for treble damages under the False Claims Act (“FCA”), restitution, and prejudgment interest. See United States v. United Technologies Corp., No. 13-4057, 2015 WL 1516215, *11-17 (6th Cir. Apr. 6, 2015). The Sixth Circuit’s
- [Ninth Circuit Holds that Indian Tribes are not "Persons" subject to FCA](https://www.dorseyfca.com/ninth-circuit-holds-that-indian-tribes-are-not-persons-subject-to-fca/) - In a brief unpublished memorandum opinion released on June 15, 2015, the Ninth Circuit affirmed the district court's dismissal of an FCA claim brought against a tribe, holding that tribes do not fit within the FCA's definition of "persons." See Thomas Howard and Robert Weldy, ex rel. United States v. Shoshone Paiute Tribes of the Duck Valley Indian Reservation, No. 13-16118 (9th Cir. June
- [In KBR v. Carter, Supreme Court Clarifies the First-To-File Doctrine and the Statute of Limitations Under the Wartime Suspension of Limitations Act](https://www.dorseyfca.com/in-kbr-v-carter-supreme-court-clarifies-the-first-to-file-doctrine-and-the-statute-of-limitations-under-the-wartime-suspension-of-limitations-act/) - Late last month, the Supreme Court issued a unanimous, two-part decision that clarified the meaning of the term “offense” as used in the Wartime Suspension of Limitations Act (“WSLA”), and the term “pending” as used in the first-to-file doctrine. The Court held that (i) the suspension of the statute of limitations under the WSLA applies
- [D.C. Circuit Interprets the First-to-File Rule Narrowly](https://www.dorseyfca.com/d-c-circuit-interprets-the-first-to-file-rule-narrowly/) - A decision this week from the D.C. Circuit shed light on three important issues. United States ex rel. Heath v. AT&T, Inc., No. 14-7094 (D.C. Cir. June 23, 2015). In 2008, the appellant, Todd Heath, filed an FCA qui tam suit against Wisconsin Bell, Inc., a wholly owned subsidiary of AT&T. In that suit Heath
- [Dialysis Provider Settles Whistleblower Lawsuit for $450 Million](https://www.dorseyfca.com/dialysis-provider-settles-whistleblower-lawsuit-for-450-million/) - The Department of Justice and dialysis provider DaVita Healthcare Partners recently finalized a $450 million agreement settling claims that the company intentionally inflated Medicare billings. The parties had filed a joint motion to stay the case, United States ex rel. et al. v. DaVita Inc., No. 07-02509 (N.D. Ga. Apr. 16, 2015), in April in
- [Ninth Circuit Unanimously Overrules Long-Standing "Original Source" Precedent; Makes it Easier to Qualify as an Original Source Under the FCA](https://www.dorseyfca.com/ninth-circuit-unanimously-overrules-long-standing-original-source-precedent-makes-it-easier-to-qualify-as-an-original-source-under-the-fca/) - For 23 years, the Ninth Circuit required that a relator establish three elements to qualify as an “original source” under the False Claims Act: (1) the relator must have direct and independent knowledge of the information on which her allegations are based; (2) the relator must have voluntarily provided that information to the government before
- [Seventh Circuit Rejects Implied Certification Theory of FCA Liability](https://www.dorseyfca.com/seventh-circuit-rejects-implied-certification-theory-of-fca-liability/) - Deepening a circuit split, the Seventh Circuit has joined the Fifth Circuit in rejecting the implied false certification theory of liability under the FCA. United States v. Sanford-Brown, Ltd., No. 14-2506 (7th Cir., June 8, 2015). The Fourth, Ninth, Tenth and District of Columbia Circuits have allowed implied false certification claims. The implied false certification

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