FCA Alert

FCA Alert

Monthly Archives: March 2011

Fourth Circuit Holds False Claims Act Seal Provisions Do Not Violate the First Amendment and Separation of Powers

Posted in Decisions Interpreting FCA Elements
Since 1986, the False Claims Act has required qui tam relators, who file FCA lawsuits on behalf of the Government, to file the complaints secretly. The FCA provides that the complaint will remain “under seal” for 60 days. During this 60-day period, the Government is supposed to investigate the alleged fraud and decide whether to intervene in … Continue Reading

Court Dismisses Indictment Against Former GSK Attorney

Posted in Articles
Yesterday, a federal district court for the District of Maryland issued an opinion dismissing without prejudice the indictment against former GSK in-house attorney Lauren Stevens accusing her of obstruction and making false statements in connection with an FDA inquiry concerning the company’s marketing practices for Wellbutrin.  Although the dismissal is without prejudice, it is difficult to see … Continue Reading

Federal District Court In Texas Orders Government To Disclose Facts Concerning Closed Criminal Investigation In Civil FCA Action; Law Enforcement And Work Product Privileges Do Not Apply

Posted in Articles
In civil False Claims Act cases in which the government has intervened, the government will often try to shield some documents from discovery based on a variety of privileges, including privileges generally asserted only by government agencies, such as the investigatory law enforcement privilege, the joint prosecutorial privilege, and the deliberative process privilege. Earlier this … Continue Reading

District of Massachusetts Court Allows FCA Action Premised on Violations of Anti-Kickback Statute to Continue

Posted in Decisions Interpreting FCA Elements
Two relators, Bernard Lisitza and David Kammerer, filed separate False Claims Act qui tam actions against Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, Inc., and Johnson & Johnson Health Care System (collectively, “J & J”).  The relators allege that J & J “unlawfully induced Omnicare, the nation’s largest supplier of pharmaceutical drugs to nursing homes, to promote … Continue Reading

Court Awards Relator Attorney’s Fees and Expenses Equal to More than Two-Thirds of Damages Award

Posted in Relator Issues
The False Claims Act is well known for the rewards that successful whistleblowers may receive pursuant to 31 U.S.C. § 3730(d)(1). Much less attention, however, is directed to § 3730(d)(2) of the FCA, which provides for the award of reasonable expenses and attorney’s fees in cases where a relator prevails and the Government has not … Continue Reading

Supreme Court To Decide Whether FOIA Response Is A Public Disclosure Under The FCA (Part I of II)

Posted in Articles, Relator Issues
On March 1, 2011, the United States Supreme Court heard oral argument in Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-1888. The Schindler case is the third time since 2007 that the Supreme Court has addressed the scope of the False Claims Act’s public disclosure bar. See Graham County Soil & Water … Continue Reading

Statistics For Off-Label Marketing Settlements Involving Prescription Drugs

Posted in Settlements
The government settled 21 cases involving allegations of off-label marketing of drugs between 2004 and 2010.   95% of the government’s investigations in these 21 instances were initiated by a qui tam complaint filed pursuant to the False Claims Act.   The government recovered $7.9 billion in criminal fines and civil settlements in these 21 … Continue Reading

Relator’s Complaint Survives Motion To Dismiss In Home Health Care Case Concerning Referral Fees

Posted in Decisions Interpreting FCA Elements
On February 10, 2011, the United States District Court for the Eastern District of Virginia denied defendant MedStar Health Visiting Nurse Association’s (“MedStar”) motion to dismiss the relator’s second amended complaint, finding that the relator had pled sufficient facts to demonstrate scienter and shared intent to defraud the government for purposes of surviving dismissal. See … Continue Reading
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