Articles and Blogs

The Eleventh Circuit Court of Appeals recently affirmed that a qui tam relator’s original complaint, rather than any amended complaints subsequently filed in the action, is the “proper point of reference” for analysis under the False Claims Act’s (“FCA’s”) first-to-file rule. Cho on behalf of States v. Surgery Partners, Inc., No. 20-14109 WL 982126... READ MORE

A federal district court affirmed this guidance in a careful analysis of the attorney-client privilege and its application to protect separate legal entities within a larger corporate structure. Affirming that member entities are not treated as “one client,” the Court in U.S. ex rel Behnke v. CVS Caremark Corp., et al. denied a whistleblower’s... READ MORE

Earlier this week, the Department of Justice (“DOJ”) announced that the United States recovered over $5.6 billion from False Claims Act (“FCA”) cases in the federal fiscal year 2021, “the second largest annual total in False Claims Act history” and more than doubling the FCA recoveries for the DOJ from fiscal year 2020. Of... READ MORE

In a recent opinion, the Seventh Circuit Court of Appeals adopted an interpretation of the False Claims Act’s “knowledge” requirement based on the Supreme Court’s interpretation of a similar provision under the Fair Credit Reporting Act. The Court’s application of this interpretation is good news for hospitals and health care systems that must regularly... READ MORE

The False Claims Act has long been a fierce, but fair weapon in the government’s fight against fraud. Recently, however, profit minded trial attorneys and private entities have monetized the FCA by taking advantage of the fraud statute’s ambiguous safeguards. By creating qui tam portfolios and securing stakes in whistleblower awards, these financially driven... READ MORE

The Ninth Circuit recently dismissed a relator’s False Claims Act (“FCA”) case for failing to satisfy its pleading requirements under Rule 8(a) of the Federal Rules of Civil Procedure, holding that the relator failed to state a plausible claim for relief because its allegations did not eliminate an obvious alternative. The Court found that... READ MORE

In a recent opinion, the Sixth Circuit Court of Appeals addressed whether the False Claims Act’s (“FCA”) anti-retaliation provision applies to actions taken against an individual after employment ends. Splitting with its sister appellate court, the Tenth Circuit, the Court compared the FCA’s anti-retaliation provision to a similar anti-retaliation clause in Title VII of... READ MORE

Hospitals and health care systems that successfully defend against frivolous FCA actions may oftentimes recover fees and expenses incurred as part of their defense. Recently, however, the United States District Court for the District of Utah broadly connected this “frivolous” standard with Rule 9(b)’s pleading requirements—a decision that may stave off whistleblowers who have... READ MORE

The Sixth Circuit closed out 2020 with a decision that contains a warning for litigators to make sure they’re asking for an enumerated remedy under the Federal Arbitration Action (“FAA”)[1] to preserve the option of an interlocutory appeal.[2] Case Background Paul Dorsa initially filed a qui tam action under the False Claims Act (“FCA”)... READ MORE

On January 19, 2021, the U.S. Court of Appeals for the Eleventh Circuit in Hickman v. Spirit of Athens[1] dismissed a whistleblower retaliation claim under the False Claims Act (“FCA”), finding that the employer’s alleged “garden-variety fraud” did not fall under the statute. Two employees of a nonprofit were terminated after seeking to audit... READ MORE