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False Claims Act Statistics, News & Analysis

Taking Out the Trash: District Court Grants Summary Judgment Where Federal Agencies Continued to Pay for Waste Removal Services Following Regulatory Violation

A Pennsylvania district court recently weighed in on the question of whether the government’s continued payment after the filing of a qui tam action defeats materiality under Escobar. In a decision helpful to FCA defendants, the court in United States ex rel. Cressman v. Solid Waste Services, Inc. granted the defendant summary judgment where the government continued to pay the defendant after the plaintiff filed his FCA action and DOJ declined to intervene.

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Escobar The Sequel? — Perhaps Coming Soon to SCOTUS

On April 16, 2018, the Supreme Court called for the views of the Solicitor General (or “CVSG”) as to whether it should review the Ninth Circuit’s decision in Gilead Sciences, Inc. v. United States ex rel. Campie (that we at LLB believe was wrongly decided and have covered previously). The CVSG may indicate the Court’s willingness to provide much-needed clarification to Escobar’s materiality standard.

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Mikes v. Straus "Particularity" Requirement May Be Dead, But Materiality is Alive and Well Among District Courts in the Second Circuit

A New York district court recently held in United States v. Strock that Escobar’s materiality standard applies, at a minimum, to express false certification and fraudulent inducement FCA theories in addition to the implied false certification theory at issue in Escobar. The court further held that the government failed adequately to plead materiality under Escobar and dismissed the case.

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FCA Cert. Monitor: Petitions Concerning Materiality After Escobar and the Original Source Exception Before the Court

After some dereliction of our FCA cert. monitoring duties, FCA Cert. Monitor is back. There currently are 10 FCA cases on the Supreme Court’s docket, raising materiality after Escobar, the first-to-file and public disclosure bars, and the Rule 9(b) pleading standard, among other issues.

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Risky Business: Reverse FCA Allegations Against Medicare Advantage Insurer Survive

In an early mixed valentine for both the government and a defendant Medicare Advantage Plan insurer, a district court in California on February 12 denied a motion to dismiss reverse FCA claims alleging the failure to correct known invalid diagnosis codes submitted for risk adjustment payments to Medicare. The court did dismiss, however, the government’s claims that the insurer’s false statements as to the validity of the diagnosis codes also violated the FCA. Poehling v. Unitedhealth Group, Inc., No. 2:16-cv-08697 (C.D. Cal. Feb. 12, 2018).

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Escobar Matters for Discovery, Too: District Court Emphasizes Right to Broad Materiality Discovery

While most post-Escobar decisions have involved the merits, Escobar also has significant implications for the scope of materiality discovery under the FCA. Last week, in United States ex rel. California v. Paramedics Plus LLC, the U.S. District Court for the Eastern District of Texas became one of the first courts to directly tackle that issue in a written opinion, holding that Escobar affords FCA defendants the ability to broadly discover how the government has actually handled the disputed issue, both in that case and in other analogous situations.

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