Articles and Blogs

False Claims Act defense attorneys have been warning government contractors, particularly Medicare and Medicaid providers, of increased risks and a reduced ability to defend against whistleblower complaints since the passage of the Fraud Enforcement Recovery Act of 2009 (“FERA”). The greatest risk comes from FERA’s addition of a new kind of reverse false claim:... READ MORE

Appellate Court Cases Three appellate-level FCA cases were reported in January and February 2013. Only one, U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America, Inc., was selected for publication. All three cases addressed Rule 9(b)’s requirement that allegations of fraud be lead “with particularity.” The cases, read together, highlight the differences among Circuits... READ MORE

Pleading a False Claims Act case can be a tricky exercise, and in defending an FCA case, it is important to know just what the rules are for a whistleblower, and how they can fail to meet them. One of the most common mistakes made by whistleblowers is failing to “plead fraud with particularity,” a requirement... READ MORE

February was an interesting month, with one case showing how OIG advisory opinions can be taken too far, another considering fraud under a corporate integrity agreement, and a court applying burden-shifting for the first time at the appellate level in FCA retaliation cases. Cases reviewed from February are: US ex rel. Boggs v. Bright Smile... READ MORE

What must a successful FCA defendant show to collect attorney’s fees under the Equal Access to Justic Act? Can an error by the government create an FCA violation by a defendant relying upon the government’s acts? Does Vermont Agency of Natural Resources v. US ex rel. Stevens apply to FCA retaliation cases? Can a... READ MORE

Can an incompetent, and ultimately dismissed, False Claims Act Complaint bar a future complaint under the FCA’s “first to file rule?” The Court of Appeals in Washington D.C. answered the question for the first time on November 4, 2011. Can a settlement agreement between an employer and an employee force dismissal of the employee’s... READ MORE

A case based upon FOIA documents may be subject to the public disclosure bar. A difference of scientific judgment does not create the basis for an FCA suit. Whistleblowers who wish to dismiss their suits after the Government refuses intervention may not hide their identity from the defendants, even if the defendant is their... READ MORE