The United States District Court for the Eastern District of Pennsylvania recently endorsed a significant expansion to the Government’s ability to dismiss a qui tam relator’s False Claims Act (FCA) case.
As expected, the Supreme Court has just resolved a circuit split over the statute of limitations for non-intervened False Claims Act cases by maximizing the time a relator has to file a complaint. The decision in Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315 (May 13, 2019) will greatly expand a defendant’s time frame for potential FCA liability and lead to more cases involving faded recollections, costly document recovery, and potential damages for decades-old alleged fraud.
Last month, the United States District Court for the Northern District of Illinois confronted a bank’s potential liability for false information obtained (and even allegedly encouraged) by bank employees in the processing of consumer loans.
In a recent decision, the United States District Court for the District of Minnesota held that the Department of Justice (DOJ) can still dismiss a qui tam filed under the False Claims Act even after it has declined to intervene in the case.
Although the government has always had the authority to move to dismiss relator cases, it almost never does, to the great frustration of numerous defendants that have had to incur the costs and inconvenience of meritless False Claims Act (FCA) claims.
On September 29, 2017, the Fifth Circuit overturned a $664 million False Claims Act (FCA) judgment in U.S. ex rel. Harman v. Trinity Industries, Inc, Case No. 15-41172 (5th Cir). The court’s reasoning offers substantial ammunition to FCA defendants, and further demonstrates that courts really will enforce the strict materiality requirements outlined by the Supreme Court in Universal Health Servs., Inc. v. United States ex rel., Escobar, 136 S. Ct. 1989, 1995 (2016).
On May 1, 2017, the Third Circuit affirmed the dismissal of a False Claims Act (FCA) case in which the eelator had asserted that Genentech concealed information about side effects of its cancer drug, Avastin. U.S. ex rel. Petratos, v. Genentech Inc., et al., Case No. 15-3805 (3rd Cir. May 1, 2017).
Last Tuesday, the U.S. Court of Appeals for the Third Circuit reversed a Pennsylvania district court’s decision denying a preliminary injunction in the Federal Trade Commission’s (FTC) and Commonwealth of Pennsylvania’s (collectively, the government) challenge to a merger between Pinnacle Health System (Pinnacle) and Penn State Hershey Medical Center (Hershey) (collectively the hospitals).
Earlier this month, the United States Court of Appeals for the Seventh Circuit established a standard for application of Fed. R. Civ. P. 9(b) that significantly strengthens the bar imposed by the heightened pleading requirements of that rule.
On Thursday, June 16, 2016 the United States Supreme Court released its decision in Universal Health Services, Inc. v. United States ex rel. Escobar (No. 15-7). In Escobar—argued on April 19, 2016—the Court decided the legal validity of the “implied certification” theory of liability under the False Claims Act (FCA).
On Tuesday, August 11, 2015, the United States Court of Appeals for the District of Columbia Circuit released a decision upholding an assertion of privilege by Kellogg Brown and Root, Inc. (KBR) over internal investigation documents in a FCA suit alleging kickbacks and overbilling on Iraq war subcontracts.
A decision last week in an FCA case in Pennsylvania confirms that the FCA’s first-to-file bar has been weakened. See U.S. ex rel. Boise v. Cephalon, Inc., No. 08-CV-287 (E.D. Pa.). The court in the Cephalon case confirmed that the Supreme Court’s decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter means that the first-to-file bar does not apply when a previously filed case is no longer pending.
The Ninth Circuit’s recent decision in U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 2015 U.S. App. Lexis 11643 (9th. Cir. July 7, 2015), overruled existing Ninth Circuit precedent regarding the requirements for meeting the public disclosure rule’s original source exception, weakening the public disclosure bar in the Ninth Circuit and opening the door for increased qui tam activity within that jurisdiction.
Today the Supreme Court issued its decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter. On the first question presented, the Court held that the Wartime Suspension of Limitations Act (WSLA) applies only to criminal offenses and thus does not toll the False Claims Act’s (FCA) statute of limitations indefinitely while the United States is in armed conflict.
Last month, the Sixth Circuit reaffirmed the fair market value (FMV) standard as the primary measure of damages in False Claims Act (FCA) cases—and demonstrated the teeth of that requirement when evidence (including expert testimony) is not presented to support an FMV determination. United States v. United Technologies Corp., 2015 U.S. App. LEXIS 5476 (6th Cir. April 6, 2015), represented the culmination of a decades-long dispute between the government and United Technologies’ Pratt & Whitney unit over pricing for engines supplied to the Air Force for use in its F-15 and F-16 aircraft.
Courts continue to whittle away at the public disclosure bar, historically one of the best ways to dispose of parasitic qui tam lawsuits. Most recently, the Eleventh Circuit issued a ruling regarding the impact of the 2010 amendments to the False Claims Act’s (FCA) public disclosure rule. In its opinion in U.S. ex rel. Osheroff v. Humana, Inc., the Eleventh Circuitjoined the Fourth Circuit in holding that the public disclosure rule, as amended in 2010, is no longer a jurisdictional bar to an FCA action. Instead, under the amended version of the statute, defendants now must move to dismiss allegations that have been publicly disclosed under Fed. R. Civ. P. 12(b)(6).