FCA Alert : Lawyers & Attorneys for Whistleblower, False Claims Act & Qui Tam Defense : Kelley Drye & Warren LLP

The New Jersey Appellate Division for the Superior Court, Mercer County, recently held that the New Jersey False Claims Act, N.J.S.A. 2A:32C–1 to –15 and N.J.S.A. 2A:32C–17 to –18, which was enacted on January 1, 2008 and made effective on March 13, 2008, does not apply retroactively to allegedly false claims submitted prior to the statute’s effective date.  See State of New Jersey ex rel. State ex rel. Hayling v. Correctional Medical Services, Inc., --- A.3d ----, Case No. A-5575-09T2, 2011 WL 4770453 (N.J.Super.A.D., Oct 11, 2011).

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The U.S. Courts of Appeals have been wrestling with the reach of the False Claims Act when the actual claim submitted to the government is not “factually false.”  Some courts have adopted a framework in which a claim that is true on its face can be considered “legally false” where a party somehow involved in the goods and services provided failed to comply with certain statutory, regulatory or contractual obligations, despite never expressly certifying that it did comply with these obligations.  This is called the “implied certification” theory of liability.  In its Petition for a Writ of Certiorari to the U.S. Supreme Court, Amgen contends that “[t]he Circuits have applied a dizzying array of different tests in deciding whether claims like this qualify as ‘false or fraudulent’ within the meaning of the FCA.”

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In United States ex rel. Yannacopoulos v. General Dynamics, et al., No. 09-3037, the 7^th Circuit affirmed summary judgment dismissal of a case alleging that General Dynamics and Lockheed Martin submitted false claims to the United States for payment in connection with a contract to manufacture and sell F-16 fighter jets and related parts and services to the government of Greece. 

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In New York ex rel. Westmoreland et al. v. Amgen, Inc. et al., 2011 WL 2937420 (1st Cir. July 22, 2011), the relator filed a qui tam action against pharmaceutical manufacturer Amgen and two other corporate defendants. The relator, a former Amgen employee, alleged that the defendants violated seven state FCAs by engaging in a kickback scheme to induce Medicaid providers to prescribe the anemia drug Aranesp. According to the relator, the kickback scheme had two prongs. First, the relator alleged that Amgen included extra Aranesp in its single-dose vials of the drug and encouraged providers to bill this free product to Medicaid. Second, the relator alleged that Amgen and the other two defendant companies channeled improper benefits to providers through allegedly sham consulting agreements, honoraria, retreats, and the like to encourage them to purchase Aranesp. The relator argued that the alleged kickbacks rendered the Medicaid reimbursement claims ineligible for payment in violation of the state FCAs of California, Georgia, Illinois, Indiana, Massachusetts, New Mexico, and New York. The states of California, Illinois, Indiana, Massachusetts, and New York intervened in the action. Georgia and New Mexico declined intervention. Amgen, at *1-2.

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In United States ex rel. Hutcheson et al. v. Blackstone Medical, Inc., 2011 WL 2150191 (1st Cir. June 1, 2011), the relator, a former regional sales manager for Blackstone Medical, Inc., filed a qui tam action against the medical device manufacturer alleging that it violated the federal FCA. The relator alleged that Blackstone caused hospitals and physicians to submit materially false claims to Medicare by engaging in a nationwide kickback scheme to induce physicians to use its medical devices in spinal surgeries. The relator further alleged that Blackstone knew this scheme would cause physicians and hospitals to present Medicare with payment claims that contained material misrepresentations. According to the relator, both hospital and physician claims for reimbursement were allegedly tainted by kickbacks provided to physicians (even though the hospitals were unaware of the kickbacks). The hospitals and physicians who submitted the claims to Medicare were not named as defendants in the action. Blackstone did not submit claims for reimbursement to Medicare. The government declined to intervene in the action (which is typically a sign that the merits of the relator’s claims are weak, the potential damages are low, or both). Blackstone moved to dismiss the action for failure to state a claim under Rule 12(b)(6). At issue was whether the claims were materially false under the FCA.

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The False Claims Act does not define what types of claims are “false.” Consequently, one of the key battles at the motion to dismiss stage in FCA litigation is whether the conduct alleged by the plaintiff can give rise to a “false” claim as a matter of law. For the past decade, courts addressing this issue have held that the FCA recognizes two categories of actionable false claims – factually false claims and legally false claims. Courts have also recognized that there are at least two subcategories of legally false claims – express certification claims and implied certification claims. A factually false claim is one that involves an incorrect description of goods or services provided or a request for reimbursement for goods or services never provided. A legally false claim is one that is not factually false (i.e., not false on its face), but is false for an extrinsic legal, regulatory or contractual reason; for example, by incorrectly certifying compliance (either expressly or impliedly) with a statute, regulation, or contractual obligation that is a prerequisite to government payment.

In a pair of recent cases, the First Circuit held that this categorical framework for determining falsity is too restrictive and rejected it. See United States ex rel. Hutcheson et al. v. Blackstone Medical, Inc., 2011 WL 2150191 (1st Cir. June 1, 2011); New York ex rel. Westmoreland et al. v. Amgen, Inc. et al., 2011 WL 2937420 (1st Cir. July 22, 2011). In doing so, the First Circuit observed that “[t]he text of the FCA does not refer to ‘factually false’ or ‘legally false’ claims, nor does it refer to ‘express certification’ or ‘implied certification.” Blackstone, at *7. The First Circuit reasoned that “[j]udicially-created categories sometimes can help carry out a statute’s requirements, but they can also create artificial barriers that obscure and distort those requirements.” Blackstone, at *7. According to the First Circuit, “in enacting the FCA, ‘Congress wrote expansively, meaning to reach all types of fraud, without qualification, that might result in financial loss to the Government.’” Blackstone, at *12. 

In the First Circuit’s view, the appropriate test to determine falsity under the FCA is a “fact-intensive” and “context-specific” inquiry into whether the claims presented to the government misrepresented that there had been compliance with a material precondition of payment recognized by the particular government program at issue. Amgen, at *6; Blackstone at *13.  In Blackstone, which involved the federal FCA, the First Circuit applied this new falsity test to claims allegedly tainted by kickbacks under the federal Medicare program. In Amgen, which involved analogous state FCAs in New York, Massachusetts, California, Georgia, Illinois, Indiana, and New Mexico, the First Circuit applied the new test to allegedly kickback tainted claims under the state Medicaid programs in those seven states.

This week, we are publishing a series a posts discussing the First Circuit’s recent Blackstone and Amgen decisions. Parts II and III will examine the application of the First Circuit’s new falsity test to the claims at issue in the Blackstone and Amgen cases. Part IV will explore the potential consequences of the First Circuit’s new falsity test and will suggest measures companies may want to consider to minimize FCA exposure. Part V will discuss why, and how, the U.S. Supreme Court should resolve the circuit split created by the First Circuit.

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In a False Claims Act case against United Health Group and its subsidiaries, alleging violations of Medicare marketing regulations and the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b ("AKS"), the Third Circuit joined with the Second, Sixth, Ninth, Tenth, Eleventh, and District of Columbia Circuits in recognizing that there can be implied false certification liability under the FCA.  United States ex rel. Wilkins v. United Health Group, Inc., Case No. 10-2747, 2011 WL 2573380 (3^rd Cir. June 30, 2011).  The Court did, however, acknowledge that the First Circuit recently rejected the judicially created categories of express and implied false certification in U.S. ex rel. Hutcheson v. Blackstone Med. Inc., 2011 WL 2150191, at *7 (1st Cir. June 1, 2011), and that the Fourth Circuit found the theory "questionable" in Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 786 n. 8 (4th Cir.1999)).  The Third Circuit also joined with courts that require that implied certification with a statute or regulation be a condition of payment, as opposed to merely a condition of participation in a federal program, such as Medicare.  In doing so, the Court upheld the District Court's dismissal of claims based on implied certification of Medicare marketing regulations, but reversed the dismissal of claims based on violations of the AKS. 

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On June 9, 2011, the District Court of Massachusetts in United States ex rel. Saltzman v. Textron Systems Corp., et al., Civil Action No. 09-cv-11985-RGS (D. Mass. June 9, 2011), dismissed a federal False Claims Act lawsuit alleging that Textron Systems, a defense contractor, submitted false claims for reimbursement for workers’ compensation insurance premiums.  The court held that even if the insurance costs were not in fact reimbursable, the defendant “is not culpable, as the FCA is not a strict liability statute.” The lawsuit was brought by a former employee of the defendant.  The United States declined to intervene.

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A former independent consultant to Beth Israel Medical Center (“BIMC”), Cleuza Colucci, brought a False Claims Act action against the hospital, alleging that it billed for and received inflated Medicare payments by purchasing Kings Highway and Doctors Hospital and then taking advantage of rate increases resulting from consolidation with BIMC for purposes of billing Medicare. The Government did not intervene, and the District Court for the Southern District of New York dismissed the case on defendants’ motion to dismiss. See United States ex rel. Colucci v. Beth Israel Medical Center, et al., Case No. 06 Civ. 5033, 2011 WL 1226267 (S.D.N.Y. Mar. 31, 2011). The District Court held that “[taking] advantage of the uncertainty in the regulations to maximize its Medicare billings..is not fraud.”

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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 the lawsuit. However, at the end of the 60-day period, the Government can request additional time to investigate, which it frequently does. There have been FCA complaints sealed for years and even more than a decade. The American Civil Liberties Union (ACLU) sought a declaratory judgment from the United States District Court for the Eastern District of Virginia that these seal provisions violate the First Amendment and Constitutional separation of powers. The District Court rejected the ACLU’s arguments and a divided Fourth Circuit affirmed the District Court’s opinion. See American Civil Liberties Union v. Holder, Case No. 1:09-cv-00042-LO-TRJ, 2011 WL 1108252 (4^th Cir. Mar. 28, 2011).

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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 J & J’s branded drugs over less costly alternatives, in violation of the False Claims Act, 31 U.S.C. § 3729 (FCA), the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b (AKS), and various state consumer protection laws.”  The United States intervened in the Lisitza action and argued that J & J caused Omnicare to submit false claims to Medicaid by falsely certifying reimbursement claims as compliant with the Anti-Kickback Statute.  The Court denied J & J’s motion to dismiss, holding that false certification of compliance with the Anti-Kickback Statute can be a basis for False Claims Act liability.  See United States ex rel. Lisitza v. Johnson & Johnson, et al., Civil Action Nos. 07-10288-RGS, 05-11518-RGS, 2011 WL 673925 (D. Mass. Feb. 25, 2011).  The Court also rejected J & J’s Rule 9(b) arguments, but granted J & J’s motion to dismiss relator Kammerer’s claims and certain of relator Lisitza’s claims based on the public disclosure and first-to-file bars.

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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 United States ex rel. Decesare, et al. v. Americare In Home Nursing, et al., No. 1:05cv696, 2011 WL 607390 (E.D. Va Feb. 10, 2011).  The relator alleged that MedStar and Americare paid kickbacks to a referral agency in exchange for referrals. The relator further alleged that MedStar and other defendants violated the False Claims Act, the Virginia Fraud Against Taxpayers Act, and the District of Columbia Procurement Reform Amendment Act in connection with certifications of Medicare and Medicaid cost reports that stated, among other things, they were not obtaining services procured through the payment of a kickback. The government declined to intervene in the action.

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This is our final post on United States ex rel. Blundell v. Dialysis Clinic, Inc., No. 5:09-cv-00710 (N.D.N.Y. Jan. 19, 2011), a qui tam action against a dialysis treatment center based on alleged quality of care issues that was recently dismissed pursuant to Rules 9(b) and 12(b)(6).  In the Dialysis Clinic case, the relator, a nurse who had been employed by the center from August 2007 until October 2008, alleged that the center violated certain state and federal standards and regulatory requirements by, e.g., failing to provide adequate staffing, using unqualified personnel, permitting personal care technicians to perform nursing functions, and failing to adequately train employees to handle emergency situations. The relator further claimed that these alleged deficiencies compromised patient care for beneficiaries under the Medicare, Medicaid, and Veterans’ Administration programs. The relator alleged violations of the False Claims Act based on worthless services and false certification theories of liability. The government declined to intervene in the action.

Today, we discuss the court’s ruling on the defendant’s Rule 12(b)(1) motion to dismiss the action for lack of subject matter jurisdiction under the False Claims Act’s public disclosure bar.

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The topic of discussion this week is United States ex rel. Blundell v. Dialysis Clinic, Inc., No. 5:09-cv-00710 (N.D.N.Y. Jan. 19, 2011) , a qui tam action against a dialysis treatment center based on alleged quality of care issues that was recently dismissed pursuant to Rules 9(b) and 12(b)(6). In the Dialysis Clinic case, the relator, a nurse who had been employed by the center, alleged that the center violated certain state and federal standards and regulatory requirements by, e.g., failing to provide adequate staffing, using unqualified personnel, permitting personal care technicians to perform nursing functions, and failing to adequately train employees to handle emergency situations. The relator further claimed that these alleged deficiencies compromised patient care for beneficiaries under the Medicare, Medicaid, and Veterans’ Administration programs. The relator alleged violations of the False Claims Act based on worthless services and false certification theories of liability. The government declined to intervene. The defendant moved to dismiss.

Today, we discuss the portions of the court’s opinion that addressed the defendant’s successful motion to dismiss under Rules 9(b) and 12(b)(6).

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Last month, a court in the Northern District of New York dismissed a qui tam action against a dialysis treatment center based on alleged quality of care issues. See United States ex rel. Blundell v. Dialysis Clinic, Inc., No. 5:09-cv-00710 (N.D.N.Y. Jan. 19, 2011). In the Dialysis Clinic case, the relator, a nurse who had been employed by the center, alleged that the center violated certain state and federal standards and regulatory requirements by, e.g., failing to provide adequate staffing, using unqualified personnel, permitting personal care technicians to perform nursing functions, and failing to adequately train employees to handle emergency situations. The relator further claimed that these alleged deficiencies compromised patient care for beneficiaries under the Medicare, Medicaid, and Veterans’ Administration programs. The relator alleged violations of the False Claims Act based on worthless services and false certification theories of liability.

In 1996, the U.S. Attorney’s Office for the Eastern District of Pennsylvania filed the first action seeking to establish FCA liability for substandard patient care in United States v. GMS Management-Tucker, Inc. et al., No. 96-1271 (E.D. Pa. 1996). The government alleged that the Tucker nursing home provided inadequate nutritional and wound care to three residents. The case settled for $600,000 before any court decisions were issued addressing the viability of the government’s novel theory of FCA liability. In 1998, the same U.S. Attorney’s Office obtained settlements from several other Pennsylvania nursing homes based on similar quality of care allegations. See United States v. Chester Care, No. 98-cv-139 (E.D. Pa.); United States v. City of Philadelphia, No. 96-cv-4253 (E.D. Pa.). As with the Tucker settlement, these settlements were reached before any court addressed the merits of the government’s theory of FCA liability.

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On January 11, 2011, in State of California ex rel. Joseph McCann et al. v. Bank of America, N.A. et al, a California Court of Appeal affirmed a trial court’s dismissal of an action under the California False Claims Act based on Bank of America’s alleged failure to return to the State credits resulting from processing errors in Bank of America’s check clearing operations located in San Francisco and Los Angeles. The relators, former employees of Bank of America, claimed that Bank of America collected these credits, held them for a short period of time, and then appropriated the credits as income. Relators claimed that such credits qualified as unclaimed property under the California Unclaimed Property law and that failure to turn over the unclaimed property to the State amounted to a reverse false claim under the California False Claims Act. The Court of Appeal rejected this argument, holding that relators had failed to plead their claims with specificity, the unclaimed credits were not unclaimed property under the California Unclaimed Property Law, and there was no false claim because even if there was an obligation to the State of California, that obligation was not liquidated and certain.

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In United States ex rel. Sanchez-Smith v. AHS Tulsa Regional Medical Center, LLC, No. 05-CV-442-TCK-PJC, 2010 WL 4702270 (N.D. Okla. Nov. 10, 2010), a federal district court in Northern Oklahoma held that the failure to provide the minimum number of therapy hours to psychiatric patients required under state health care regulations can provide grounds for an implied false certification claim under the federal False Claims Act.  In this case, the court found that there were triable issues of material fact as to whether the hospital submitted false claims for reimbursement because the minimum therapy hours requirement was a “condition of payment,” and not merely a “condition of participation” in the Medicaid program.  Thus, according to the Oklahoma court, by submitting claims for reimbursement, the defendant was allegedly impliedly certifying compliance with the minimum hours requirement.  Not all courts have adopted the implied certification theory of liability under the FCA.

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On December 8, 2010, in United States ex rel. Bierman v. Orthofix International, N.V. et al., Civil Action Nos. 05-10557-EFH, 08-11336-JLT, 2010 WL 4973635 (D. Mass.), a District of Massachusetts court denied several medical device manufacturers’ motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b) for reimbursement-related false claims under the False Claims Act associated with the sale versus rental of certain bone growth stimulators.

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 In a December 3, 2010 decision in United States v. Science Applications International Corporation, Case No. 04-CV-01543 (D.C. Circuit Dec. 3, 2010), the D.C. Circuit affirmed a trial court’s holding that the implied certification theory of liability does not require the offending false certification to relate to an express condition for payment, holding that a violation of the False Claims Act exists when a false certification is material to the government’s decision to pay a claim.  In addition, the D.C. Circuit rejected the lower court’s instructions on the “collective knowledge” standard for scienter and its instructions on damages, vacated the lower court’s judgment as to liability and damages, and remanded for a new trial.

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On November 18, 2010, the Sixth Circuit Court of Appeals affirmed a trial court’s post-trial judgment finding of liability under the FCA against United Technologies, but reversed the portion of the judgment finding no damages as to United Technologies. United States v. United Technologies Corp., No. 08-4256 (6th Cir., Nov. 18, 2010).

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Since the mid-late 1990s, plaintiffs have been testing the limits of the False Claims Act in health care litigation and have been asserting increasingly creative and far-fetched theories of liability against drug and device companies for various types of alleged conduct, including deceptive marketing practices, off-label marketing, failure to pay the appropriate Medicaid rebate, and inflated published prices.  Here are some statistics:

• In 2010 alone, the federal government has already collected $3.1 billion in FCA cases.  Eighty percent (80%) of these proceeds came from health care companies, including insurers and hospitals.

• Pharmaceutical companies made up 8 of the 10 largest FCA settlements in 2010.

• Ten of the world’s top twelve pharmaceutical companies have entered into corporate integrity agreements (CIAs) with the federal government in connection with large scale FCA settlements.

Last month’s $750 million GSK settlement indicates that a new theory of liability is in play – the violation of Good Manufacturing Practices in the production of drugs and devices.  Two weeks ago, in United States ex rel. Steury v. Cardinal Health, Inc., 2010 WL 4276073 (5^th Cir. Nov. 1, 2010), the Fifth Circuit rendered a decision that brings yet another potential theory of FCA liability into play – whether the FCA is violated if a company sells the government medical equipment that the company knew was defective and unsafe.

Why would a plaintiff want to bring an FCA action when it can simply file a products liability suit to address such conduct?  There are two principal reasons for this.  First, an FCA plaintiff does not need to establish that it was injured by a product defect to bring a claim.  Rather, an FCA plaintiff must simply be aware of an alleged fraud committed against the government and then establish that the allegations in the qui tam complaint were not previously publicly disclosed, or if they were, that the plaintiff is the original source of the information.  Second, the damages in an FCA case can be extremely large.  Once FCA liability is established, the plaintiff is entitled to treble damages and penalties which can range from $5,000 - $10,000 or more per violation.  Moreover, the relator’s “cut” ranges between 15-30% of the recovery, which can be quite large in a case against a major drug or device manufacturer.  In the recent GSK settlement, the whistleblower received $96 million, which is reported to be the largest FCA payout to a single individual in history.

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The District of Massachusetts dismissed an action under the False Claims Act brought by Dr. Kenneth James Jones, the “relator,” against Brigham and Women’s Hospital, Massachusetts General Hospital, and a couple of scientists, alleging that they submitted a grant application containing allegedly false statements to the National Institute on Aging, an organization under the National Institutes of Health, requesting funding for research relating to Alzheimer’s Disease.  See United States ex rel. Jones v. Brigham & Women’s Hospital, Civil Action No. 07-11481-WGY, 2010 WL 4502079 (D. Mass. Nov. 10, 2010).  The court rejected the relator’s theories under factual falsity, legal falsity under an express certification theory, and legal falsity under an implied certification theory.

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Former employee, Ali Bahrani, filed a False Claims Act lawsuit against ConAgra, alleging that ConAgra altered thousands of meat and hide export certificates issued by the United States Department of Agriculture (USDA) to avoid paying fees charged by the USDA for replacement certificates.  Bahrani lost most of his claims at trial, winning a judgment of only $27,822.50 plus $9,274.16 in attorneys’ fees and costs.  Both sides appealed, and the Tenth Circuit held that all of Bahrani’s claims fail as a matter of law and reversed the judgment.  See United States ex rel. Bahrani v. Conagra, Inc., Nos. 09-1163, 09-1180, 09-1388, 2010 WL 4188251 (10th Cir. Oct. 26, 2010).

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A federal district court in the Southern District of Texas recently dismissed a qui tam False Claims Act complaint against Medtronic alleging improper off-label marketing.  See United States ex rel. Bennett v. Medtronic, Inc., No. H-08-3408 (S.D. Tex. Sept. 30, 2010).  Following a recent spate of high-dollar settlements of off-label marketing cases, the court’s decision applies some sensible and much needed pleading requirements on these types of claims.

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The Court of Appeals for the Ninth Circuit held that an insurance company was not liable under the False Claims Act for initially contesting coverage for the relator’s surgery while Medicare paid the hospital in the interim. See United States ex rel. Mason v. State Farm Mutual Automobile Insurance Co., No. 09-35819, 2010 U.S. App. LEXIS 20385 (9th Cir. Oct. 1, 2010).

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In United States v. Hawley, No. 08-2992, 2010 WL 3292710 (8th Cir. Aug. 23, 2010), the Eighth Circuit reversed the District Court’s grant of summary judgment to the Defendants (Hawley), finding that the government had cognizable claims under the FCA prior to the expansion of the scope of the FCA by the Fraud Enforcement and Recovery Act (FERA).

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On August 16, 2010, the United States District Court for the Northern District of Texas held that a key provision of the recent Fraud Enforcement and Recovery Act (FERA) amendments to the federal FCA intended to overturn the Supreme Court’s 2008 decision in Allison Engine Co. v. United States ex rel Saunders does not apply retroactively. See United States ex rel. Davis v. Lockheed Martin Corp., No. 4:09-CV-645-Y (N.D. Tex. Aug. 16, 2010).

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The Ninth Circuit recently joined the Second, Sixth, Tenth, and Eleventh Circuits in endorsing the theory of implied certification under the federal FCA. See Ebeid ex rel. United States v. Lungwitz et al., No. 09-16122, 2010 WL 3092637 (Aug. 9, 2010). The implied false certification theory was first recognized by the Court of Federal Claims in Ab-tech Construction, Inc. v. United States, 31 Fed. Cl. 429 (Fed. Cl. 1994), aff’d mem., 57 F.3d 1084 (Fed. Cir. 1995), and is “based on the notion that the act of submitting a claim for reimbursement itself implies compliance with governing federal rules that are a precondition to payment.” United States ex rel. Mikes v. Straus, 274 F.3d 687, 699 (2d Cir. 2001).

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In United States ex rel. Owens v. First Kuwaiti General Trading & Contracting Co., No 09-1899, 2010 WL 2794369 (4th Cir. July 16, 2010), the Fourth Circuit affirmed a grant of summary judgment to a government contractor because the Relator at most alleged a mere breach of contract, and not the type of wrongdoing targeted by the FCA.

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On June 24, 2010, in United States of America et al. v. Roy Silas Shelburne, Case No. 09-00072, 2010 WL 2542054 (W.D. Va. Jun. 24, 2010), the Virginia district court denied the defendant’s motion to dismiss an action brought by the United States and the Commonwealth of Virginia, holding that the “FCA includes any fraudulent Medicaid claim that causes the government to lose money.” 

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