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False Claims Act Statistics, News & Analysis

A Cure for the Common Qui Tam? Escobar’s Materiality Standard and Government Inaction has Pharma Defendant Feeling Good Again

The Third Circuit recently joined the growing number of circuits refusing to find materiality where the government fails to act or intervene in the face of alleged noncompliance. See United States ex rel. Petratos v. Genentech, No. 15-3805 (3rd Cir. May 1, 2017). The D.C. Circuit; First Circuit; and Seventh Circuit all have reached similar conclusions. The Ninth Circuit will address this issue in the coming months in United States ex rel. Rose v. Stephens Institute.

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Franks and the False Claims Act? District Court Uses Familiar Fourth Amendment Remedy to Dismiss Deceptive FCA Case

An “elaborate series of falsehoods, misrepresentations, and deceptive conduct” perpetrated by a relator’s counsel culminated last Friday with dismissal of a relator’s False Claims Act complaint by the U.S. District Court for the District of Massachusetts. In U.S. ex rel. Leysock v. Forest Labs., Inc., No. 12-11354, 2017 WL 1591833 (D. Mass. Apr. 28. 2017),  relator alleged off-label promotion of an Alzheimer drug, and to get over the Rule 9(b) “hump,” relied on a purported nationwide study of physician prescribing practices for the medication.  The study results were featured prominently in the complaint – including details about particular physicians and patients.  Turns out, however, that the “study” at issue was sponsored and directed entirely by relator’s counsel under false pretenses.

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False Claims Act Cert. Monitor: Solicitor General Asked to Weigh in on Public Disclosure Bar Petition, and New Petition Filed on FERA Retroactivity

Straight out of the gates from the long conference, the Supreme Court yesterday, October 3rd, called for the views of the Solicitor General (CVSG) on a relator’s cert. petition about the FCA public disclosure bar in U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A. (“ABLE”), No. 16-130, a case which we have written about previously. The petition asks whether a public disclosure of a broad, general category of alleged misconduct bars an FCA claim about a narrower, specific subtype of that misconduct, even though that subtype was not specifically addressed in the public disclosure. Also, a new petition has been filed on the question of the retroactive application of the 2009 FCA amendments. Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408.

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False Claims Act Cert. Monitor: Supreme Court Will Consider Four FCA Petitions Today

Today, at the Supreme Court’s 2016long conference,” the justices will consider some 1,600 petitions for certiorari in a single day. There are four FCA cert. petitions up for review. We covered those petitions in an earlier FCA Cert. Monitor post. In short, two of the petitions raise questions related to the public disclosure bar, U.S. ex rel. Cause of Action v. Chicago Transit Authority, No. 16-131; U.S. ex rel. Advocates for Basic Equality, Inc. v. U.S. Bank, N.A., No. 16-130. The remaining two petitions concern the application of Rule 9(b), U.S. ex rel. Walterspiel v. Bayer AG, No. 16-8, and what preclusive effect, if any, a prior determination that the government is not entitled to restitution has on the government’s right to seek damages in an FCA case, Anghaie v. United States, No. 15-1456. We are watching these cases closely and will report on the Court’s decisions.

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False Claims Act Cert. Monitor: Who Is the State? Solicitor General Asked to Weigh in on FCA Liability of State-Affiliated Medical and Education Entities

There's a strong chance the Supreme Court will grant certiorari on the fourth FCA issue in the past few years. This time, the most likely candidate for review is an important question for state-affiliated universities and hospitals facing FCA claims: When are state-affiliated entities liable under the FCA? With three petitions on this issue, coming from both the defense and relators’ bars, and the Court calling for the views of the Solicitor General (CVSG) in one case, the chances look decent for a grant on this issue in the upcoming term. Also before the Court are two petitions related to the public disclosure bar, the latest petition on whether Rule 9(b) requires relators to plead specific false claims with particularity, and a pro se petition about the relationship between restitution for criminal charges and damages under the FCA.

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