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Tag Archives: Rule 9(b)

Third Circuit Adopts Less Rigid Pleading Standard for FCA Claims

Posted in Rule 9(b) Decisions
In Foglia v. Renal Ventures Management, LLC, the Third Circuit reversed a New Jersey district court’s order dismissing an FCA case for failure to satisfy Federal Rule of Civil Procedure 9(b), holding that the court applied an overly demanding pleading standard to relator Thomas Foglia’s complaint.  The United States did not intervene in this case.  … Continue Reading

D.C. Circuit Issues Opinion on First-To-File Bar

Posted in Relator Issues
The U.S. Court of Appeals for the District of Columbia in United States ex rel. Batiste v. SLM Corporation, Civil Action No. 10-7140 (D.C. Cir. Nov. 4, 2011) affirmed the dismissal of a relator’s complaint based on an application of the first-to-file bar of the FCA.  The first-to-file rule provides that “no person other than the Government … Continue Reading

Quality Of Care Cases Under The False Claims Act: Pointers For The Defense (Part II Of III)

Posted in Articles, Decisions Interpreting FCA Elements, Relator Issues, Rule 9(b) Decisions
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 … Continue Reading

Quality Of Care Cases Under The False Claims Act: Pointers For The Defense (Part I Of III)

Posted in Articles, Decisions Interpreting FCA Elements, Relator Issues, Rule 9(b) Decisions
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 … Continue Reading

Virginia District Court Dimisses FCA Case Against Student Lending Companies

Posted in Rule 9(b) Decisions
On January 12, 2011, a district court in the Eastern District of Virginia dismissed a qui tam action which involved claims that a private commercial lender authorized to make post-secondary education loans pursuant to the Federal Family Education Loan Program violated the False Claims Act. In United States ex rel. Jones v. Collegiate Funding Services, … Continue Reading

Can The Government’s False Claims Act Suit for Defective Cardiac Devices Against Boston Scientific & Guidant Survive A Motion To Dismiss?

Posted in Articles, Settlements
On January 27, 2011, the United States filed its complaint-in-intervention in United States ex rel. Allen v. Guidant LLC et al. (including Boston Scientific), Case No. 0:11-cv-00022 (D. Minn.). The Guidant case involves the events surrounding medical device manufacturer Guidant’s recall of the Prizm 2 and Contak Renewal 1 and 2 cardiac devices in June … Continue Reading

D.C. District Court Dismisses FCA Case Against Contractor Under Rule 9(b)

Posted in Rule 9(b) Decisions
On January 11, 2011, a District of Columbia district court dismissed with prejudice a False Claims Act case against a government contractor under Rule 9(b) in a relator-only action. See United States ex rel. Folliard v. Hewlard-Packard Co., Civil No. 07-1969 (D.D.C.). The Relator, a former HP sales rep that sold information technology products and … Continue Reading

D. Mass. Denies Rule 9(b) Motion To Dismiss In Medical Device Case

Posted in Rule 9(b) Decisions
Yesterday, we discussed the district court’s basis for denying the Rule 12(b)(6) motions to dismiss made by several medical device manufacturers in the Orthofix case pending in the District of Massachusetts.  Today, we examine the second part of the court’s opinion which addressed defendants’ motion to dismiss for failure to plead fraud with particularity under … Continue Reading

Texas Court Dismisses Off-Label Device Marketing FCA Case

Posted in Decisions Interpreting FCA Elements
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 … Continue Reading

Mississippi Court Denies Government’s Attempted “Fishing Expedition”

Posted in Rule 9(b) Decisions
In a case where the government is alleging violations of the False Claims Act and the Anti-Kickback Statute, a Northern District of Mississippi Court rejected the government’s attempt to engage in a “fishing expedition” to support allegations of “unknown wrongs” against “unnamed entities.” See United States v. McKesson Corp., et al., Civil Action No. 2:08CV214-SA-DAS, 2010 … Continue Reading

6th Circuit Ends FCA Action Against Ford

Posted in Rule 9(b) Decisions
A qui tam FCA case against Ford Motor Company came to a definitive close last week when the Sixth Circuit affirmed, for a second time, the dismissal of the relator’s first amended complaint and agreed with the lower court that the relator should not be allowed to file a second amended complaint.  See United States … Continue Reading

Public Disclosures in Civil Complaints and Media Bar Relator’s Action

Posted in Relator Issues
In United States ex rel. Poteet v. Bahler Medical, Inc., No. 09-1728, 2010 WL 3491159 (1st Cir. Sept. 8, 2010), the First Circuit affirmed the dismissal of a relator’s qui tam action.  The relator brought the action against 120 spine surgeons and 18 medical device distributors, making allegations surrounding the promotion of a medical device … Continue Reading

Texas Court Holds FCA Amendment Applies Retroactively to Claims for Payment, Not Lawsuits

Posted in Decisions Interpreting FCA Elements
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 … Continue Reading

Ninth Circuit Adopts Implied Certification Theory

Posted in Decisions Interpreting FCA Elements
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 … Continue Reading

Tenth Circuit Reverses Dismissal of Relator Action

Posted in Rule 9(b) Decisions
The Tenth Circuit reversed the District Court’s dismissal of a relator’s action, holding that the District Court should have applied a more lenient pleading standard. See United States ex rel. Lemmon v. Envirocare of Utah, Inc., No. 09-4079, 2010 WL 3025021 (10th Cir. Aug. 4, 2010). In Lemmon, the relator brought claims under the FCA, alleging that … Continue Reading

Relators Can Amend Complaint With Documents Obtained By Government

Posted in Rule 9(b) Decisions
On July 20, 2010, the District Court of the Southern District of Texas in United States ex. rel. King v. Solvay S.A., Civil Action H-06-2662, held that relators could amend their complaint to add factual allegations based on documents obtained by state governments pursuant to investigative powers while the case was under seal. The relators used … Continue Reading

Maryland Court Dismisses Complaint Alleging Medicaid Rebate Fraud

Posted in Rule 9(b) Decisions
On July 9, 2010, in United States ex rel. Conrad v. Grifols Biologicals Inc., Civil Action No. 07-3176-RDB (D. Md. July 9, 2010), an action brought by a relator where the Government did not intervene, the District Court dismissed the action with prejudice against defendant drug manufacturers Novartis Consumer Health, Inc. (Novartis) and Baxter Healthcare … Continue Reading
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