The FCA Insider

The FCA Insider

Insights and updates on False Claims Act Litigation

Category Archives: FCA Litigation

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FCA Litigation

Ninth Circuit Denies Arbitration of a Relator’s FCA Claims

On September 11, 2017, in United States and State of Nevada ex rel. Welch v. My Left Foot Children’s Therapy, LLC, the Ninth Circuit held that an arbitration agreement between an employee-relator and her former employer was not broad enough to cover the Relator’s whistleblower claims under the FCA.  This opinion raises questions as to… Continue Reading
Damages, FCA Litigation

Government Increases Civil Monetary Penalties Again

The Department of Justice has announced new, increased civil penalties that are applicable under the False Claims Act (FCA). The new range of FCA penalties is from $10,957 to $21,916.  These increased statutory penalties reflect a continuing, inflation-based increase to the available statutory penalties. This marks the second year in a row in which the applicable penalties under… Continue Reading
FCA Litigation, Implied Certification

First Circuit Finds that the Allegations in Escobar Satisfy the Supreme Court’s Materiality Requirements

The United States Supreme Court’s landmark decision in Escobar, which we have discussed previously, upheld the use of the implied certification theory where the implied certification of statutory/regulatory compliance is material to the government’s decision to pay the claims at issue. See generally Universal Health Servs., Inc. v. United States and Commonwealth of Mass. ex… Continue Reading
FCA Litigation

Seventh Circuit Finds that Pharmacy Discount Programs Are Not Exempt from the Definition of “Usual and Customary”

Created in 2006, Medicare Part D is a government program that subsidizes the cost of prescription drugs to Medicare beneficiaries. The program is run through “Plan Sponsors” – private entities that receive a fixed monthly payment from the Center for Medicare and Medicaid Services (“CMS”) and subcontract with Pharmacy Benefit Managers to provide prescription drug… Continue Reading
FCA Litigation, FCA Statistics

Relators Recover Over $1 Billion in Non-Intervened Cases in Fiscal Year 2015

In fiscal year 2015, more than $1 Billion of the Government’s False Claims Act (FCA) recovery was derived from cases in which the Government declined to intervene. This significant recovery far exceeds the typical, annual recovery that is obtained by relators without Government intervention. During the past decade, the Government has intervened in approximately 20-24%… Continue Reading
Defense Arguments, FCA Litigation

Third Circuit Ruling Reflects the Narrowed Scope of the Public Disclosure Bar under the Affordable Care Act

The public disclosure bar is a statutorily created hurdle that plaintiffs must cross to successfully maintain a False Claims Act suit. The principle was originally enacted to prevent individuals from filing “parasitic” False Claims Act (FCA) lawsuits that were not based on their independent knowledge. The public disclosure bar has undergone several statutory changes during… Continue Reading
FCA Litigation

Mitigating FCA Whistleblower Risk When Employees Leave

Over the past decade, efforts to enforce health care fraud regulations have been bolstered significantly with increased government funding and a dramatic increase in whistleblower claims filed under the False Claims Act’s qui tam provisions. The majority of FCA civil litigation in 2014, approximately 70 percent, resulted from these whistleblower claims and the substantial majority… Continue Reading
FCA Litigation

First Circuit Applies Kellogg Brown & Root to Allow Relator to File Motion to Supplement Previously Dismissed Complaint

In United States ex rel. Gadbois v. PharMerica Corp., — F.3d —- (1st Cir. 2015), the First Circuit, in a matter of first impression, held that a relator’s complaint was not subject to dismissal under the first-to-file bar where an earlier-filed action based on the same underlying facts was settled and dismissed while the relator’s… Continue Reading
Defense Arguments, FCA Litigation

Defendants Obtain Summary Judgment In an FCA Action Because the Plaintiffs Failed to Identify Evidence of Specific False Claims

It is often stated that the sine qua non (the indispensable and essential action) of a violation of the False Claims Act (FCA) is the submission of a false or fraudulent claim. This principle has been recognized and cited in federal courts throughout the country. A recent case that was decided in the United States… Continue Reading
Defense Arguments, FCA Litigation

Supreme Court Clarifies the First to File Bar

The first to file bar is a limitation on the rights of members of the public to commence certain litigation under the FCA.  In essence, the first to file bar prevents a member of the public from commencing an action based upon facts that have already been placed at issue in another piece of FCA litigation.   Specifically, “[w]hen a person brings an action… Continue Reading
FCA Litigation

Growing Use of Sampling in FCA Cases

In prior years, sampling has been at issue in FCA cases largely in the context of damages.  Specifically, where there were allegations of a specific course of wrongful conduct that allegedly impacted large volumes of claims, sampling could be used to determine and extrapolate damages.  However, a couple of recent decisions have suggested an expanded… Continue Reading