By

Josh Fougere

29 June 2018

U.S. Solicitor General Agrees That First-to File Violations Require Dismissal

The Solicitor General recently filed a brief in the United States Supreme Court stating that “the required remedy for a first-to-file violation is dismissal.”  U.S. Br. 10 (emphasis added).

The brief was filed in the context of the long-running case that produced the Court’s opinion a few years ago in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015).  On remand, the petitioner, Benjamin Carter, maintained that the intervening dismissals of two earlier-filed cases “cured” any first-to-file defect with his case, such that dismissal and re-filing of Carter’s complaint was unnecessary.  The district court and the Fourth Circuit disagreed.  Carter then sought certiorari, and the Supreme Court invited the Solicitor General to weigh in.  (The government recommended against certiorari, and the Court denied the petition on June 25, 2018.)  (more…)

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10 April 2018

Sidley Lawyers Publish Article On Third Circuit Decision Regarding The Necessary Link Between Alleged Anti-Kickback Statute Violations And Actual Claims for Payment

Sidley lawyers Kristin Graham Koehler and Josh Fougere have authored an article as a part of the Washington Legal Foundation’s Legal Opinion Letter series, entitled “Third Circuit Confirms that False Claims Act Liability Requires Actual Evidence of a False Claim.” The article examines the Third Circuit’s recent ruling in United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89 (3d Cir. 2018), an FCA suit premised on alleged violations of the Anti-Kickback Statute that was previously covered on this blog here.  Reaffirming the importance of showing an actual false claim for government payment, the Third Circuit held that, to prevail at summary judgment, relators must “point to at least one claim” rendered false or fraudulent by the alleged kickback scheme.  In doing so, moreover, the Third Circuit roundly rejected the relator’s arguments that a defendant “necessarily” violates the FCA by certifying that it did not pay illegal kickbacks, or that “the taint of a kickback renders every reimbursement claim false.”  Instead, the relator needed evidence of at least one “particular patient [who was] exposed to an illegal recommendation or referral and a provider [who] submits a claim for reimbursement pertaining to that patient.”  This decision should prove particularly significant for pharmaceutical manufacturers as more relators gravitate towards Anti-Kickback Statute allegations rather than off-label contentions.

The article is available for download on the Washington Legal Foundation’s website: http://www.wlf.org/publishing/publication_detail.asp?id=2706.

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13 June 2017

Fifth Circuit Affirms Defense Verdict and Dismissals of Off-Label FCA Claims

Last week, the Fifth Circuit affirmed a defense verdict and the earlier dismissal of several False Claims Act claims related to the alleged off-label use and Medicare reimbursement of medical stents.  The decision includes several significant rulings for FCA defendants, particularly in the Fifth Circuit.  First, the court affirmed the dismissal of an anti-kickback claim because the relator had “[n]o particulars [to] show that the unidentified doctors who received the ill-defined benefits caused the hospital to use Abbott stents” and thus “never link[ed] the alleged carrots to the purchase and use of the stents at either of the hospitals.”  Slip op. 6.  The need to plead details showing such a “link[]” – or causation – is important.  (more…)

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15 March 2017

Fifth Circuit Holds Public Disclosure Bar Is No Longer Jurisdictional, Affirms Summary Judgment on Materiality Grounds

On March 14, the Fifth Circuit affirmed summary judgment for the defendants in a former employee’s False Claims Act suit against BP related to an oil rig in the Gulf of Mexico.  The opinion is notable in at least two respects.  First, the Fifth Circuit affirmatively “agree[d] with [its] sister circuits that the public disclosure bar is no longer jurisdictional” after the 2010 amendments to the FCA.  Slip op. 4 n.2.  That had previously been an open question in the Fifth Circuit.  Second, the Court reinforced the “demanding” materiality standard that the Supreme Court articulated in EscobarId. at 4-6.  The relator’s FCA claims had led Congress to request an investigation by the Department of Interior.  After that investigation, however, DOI “decided to allow the [rig] to continue drilling,” and that decisions was, in Escobar’s words, “‘strong evidence’” that regulatory compliance requirements related to the rig were “not material.”  Id. at 5-6.  Summary judgment for defendants was therefore warranted.

A copy of the opinion is here.

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