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False Claims Act Statistics, News & Analysis

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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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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Litigation Update: Ninth Circuit Stays Mandate to allow Gilead to Seek Cert on Key Post-Escobar Issues

We reported previously on yet another implied certification case raising significant questions about materiality and falsity in the post-Escobar world, United States ex. rel. Campie v. Gilead Sciences, Inc., in which the Ninth Circuit reversed the district court’s dismissal of the case.

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  • 26
  • September
  • 2017

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False Claims Act Cert. Monitor: Eight FCA Petitions on the 2017 Docket So Far

With the first day of fall comes the new term at the Supreme Court, and with the new term comes the chance to catch up with petitions we wrote about last year and with new petitions filed over the summer. We know of at least six FCA petitions that were set to be considered at the Court’s Long Conference on September 25, and we should learn their fates this week. Meanwhile, we have tracked down two other petitions still in briefing. These petitions touch on everything from the Rule 9(b) pleading standard, to reverse false claims, to knowledge in the face of ambiguous rules, to Escobar’s two-part falsity test, to sanctions for relator misconduct.

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A Year after U.S. ex rel. Escobar, Lower Courts Diverge on Key Question in Implied-False-Certification FCA Suits

Just over a year ago, False Claims Act (FCA) watchers eagerly awaited the US Supreme Court’s decision in U.S. ex rel. Escobar v. Universal Health Services, Inc., expecting that it would resolve once and for all whether implied false certification is a valid FCA theory. V&E’s Craig Margolis and Christian Sheehan provide a post-Escobar analysis in an article they recently wrote for Washington Legal Foundation (WLF).

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A Bad Week for Copycat Relators: Fourth and D.C. Circuits Say First-to-File Bars Cases Brought While Earlier-Filed Cases Were Pending Even After Earlier Case Is Dismissed

Defendants facing serial, related qui tam cases should breathe a collective sigh of relief because the Fourth Circuit and the D.C. Circuit have just rejected relators’ efforts to undermine the first-to-file bar. In decisions issued less than a week apart, the D.C. Circuit in U.S. ex rel. Shea v. Cellco Partnership, Nos. 15-7135 & 15-7136, and the Fourth Circuit in U.S. ex rel. Carter v. Halliburton Co., No. 16-1262, both held that the first-to-file bar compels dismissal of actions brought while earlier-filed actions were pending, even if those earlier-filed actions have since been dismissed. Both courts also put the kibosh on those relators’ efforts to evade the first-to-file bar by amending their complaints after dismissal of the earlier-filed action. We’re proud to say that the attorneys of Vinson & Elkins, the same people who bring you LLB, represented the defendants in Carter and an amicus supporting the defendants in Shea.

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