The False Claims Act’s “public disclosure bar” calls for dismissal of complaints by qui tam plaintiffs (or “relators”) whose allegations have already been publicly disclosed. The primary aim of the bar is preventing parasitic suits based on public information. Courts generally agree that disclosure to the government alone does not count as disclosure to the
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The Olympus Debacle: Why Internal Whistleblowing is a Good Thing for Compliance
The U.S. Department of Justice announced last week that Olympus Corporation of the Americas (OCA) agreed to pay $646 million to resolve three cases relating to its longstanding practice to bribe doctors and hospitals in the U.S. and abroad. The company entered deferred prosecution agreements (DPA) related to violations of the Anti-Kickback Statute (AKS) and…
Freddie Mac and Fannie Mae Not Considered Government Agents Under the FCA
In United States ex rel. Adams v. Aurora Loan Servs., Inc., 2016 WL 697771, — F.3d —- (9th Cir. Feb. 22, 2016), the Ninth Circuit found that Fannie Mae and Freddie Mac were not government entities for purposes of the False Claims Act. In so holding, the Ninth Circuit provided further clarity to the…
Whistleblower Denied Recovery In FCA Case With $322 Million Settlement
A whistleblower was recently denied any portion of the Government’s recovery in a False Claims case despite the Government obtaining a settlement of approximately $322 million. The decision arose in the case of United States ex rel. Swoben v. SCAN Health Plan, Case No. 09-cv-5013-JFW pending in the United States District Court for the Central…
Fifth Circuit Rejects FCA Case Based On Purported Improper Legal Billings
Although litigants frequently contend that the opposing party’s arguments are without factual or legal support, it is uncommon and unconventional for a litigant to contend that the opposing party has violated the FCA by advancing a purportedly weak legal argument. Despite the apparent oddity of such allegations forming the basis for an FCA claim, the…
Relator’s Allegations from Prior Lawsuit Serve as Basis for Public Disclosure Bar Dismissal
In United States ex rel. Wilhelm v. Molina Healthcare of Florida, No. 12-24298, 2015 WL 5562313 (S.D. Fla. Sept. 22, 2015), the court provided further clarification on two frequently litigated issues of the FCA’s public disclosure bar: (1) whether the date of filing or the date of the alleged FCA violation controls for determining which…
How Is a Relator’s Recovery in an FCA Settlement Taxed?
This rarely litigated question was presented to the Seventh Circuit in Patrick v. Commissioner of Internal Revenue, No. 14-2190, 2015 WL 5024985, — F.3d —- (Aug. 26, 2015). Previously, the First Circuit, in Fresenius Medical Care Holdings, Inc. v. United States, 763 F.3d 63, 71-72 (1st Cir. 2014), answered the related question of how an…
CMS Releases Data Regarding Hospital and Physician Utilization
CMS recently announced that it would be releasing Medicare hospital utilization and payment data, as well as physician and supplier utilization and payment data. This is the third year that the hospital data has been released and the second year that the physician data has been released.
Acting CMS Administrator Andy Slavitt explained that “[t]hese…
The Fourth Circuit Expands the Implied Certification Theory to Anti-Retaliation Claims
On January 8, 2015, the Fourth Circuit determined that, amid a circuit split, the “implied certification” theory of liability under the False Claims Act (“FCA”) was viable in the Fourth Circuit. United States v. Triple Canopy, Inc., 775 F.3d 628, 635 n.3 (4th Cir. 2015) (“contractual implied certification claims can be viable under the FCA…
KBR v. Carter–Supreme Court Holds that the First-to-File Bar Only Applies to Pending Cases
On Wednesday the Supreme Court, in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, No. 12-1497 (2015), held that the Wartime Suspension of Limitations Act (“WSLA”) only tolls the statute of limitations for criminal offenses, not civil claims under the False Claims Act (“FCA”). The Court also held that the…