Key Takeaways:
This is the first in our 2023 series examining important trends in white collar law and investigations. Up next: criminal tax enforcement.
The False Claims Act (or “FCA”) continued to drive significant enforcement activity in 2022, especially, but not exclusively, in the healthcare sector. In 2023, we expect the government and whistleblowers to continue to prosecute and likely resolve False Claims Act matters in large numbers. … More
This is the seventh post in this year’s series examining important trends in white collar law and investigations. Our previous post discussed SEC Enforcement in 2022: A Look Ahead. Up next: ESG and the SEC: What’s Next on the Horizon.
Looking further ahead into 2023, we expect to see several trends in the DOJ’s enforcement of the False Claims Act:
As we anticipated last spring, the Department of Justice (DOJ) has signaled that it will utilize civil enforcement of the False Claims Act (FCA) to address new and emerging cybersecurity threats. On October 6, 2021, Deputy Attorney General Lisa Monaco announced the launch of a new cyber-fraud initiative led by the Fraud Section of DOJ’s Commercial Litigation Branch. The new initiative will focus FCA enforcement against federal government contractors or grant recipients who fail to follow required cybersecurity standards.… More
This is the sixth in our First 100 Days series examining important trends in white collar law and investigations in the early days of the Biden administration. Our previous entry discussed ESG initiatives by the SEC. Up next will be a close look at pandemic-related fraud.
As expected, the Biden presidency has brought new leaders to the top posts of the Department of Justice (DOJ). … More
Federal prosecutors continued to quickly respond to PPP loan fraud, bringing two additional cases that allege clear misuse of the funds intended for small businesses. In one case, prosecutors in Georgia charged reality TV personality Maurice Fayne, aka “Arkansas Mo” of “Love & Hip Hop: Atlanta” fame, with bank fraud for allegedly using $1.5 million of a $2 million PPP loan to maintain his luxury lifestyle. … More
On Tuesday, May 5, the Department of Justice (DOJ) filed charges in the federal District Court of Rhode Island against David A. Staveley and David Butziger for conspiracy to make a false statement and conspiracy to commit bank fraud in connection with loan applications made under the federal government’s Payroll Protection Program (PPP). The Complaint alleges that Staveley of Andover, Massachusetts, and Butziger of Warwick, Rhode Island,… More
The United States Attorney for the District of Massachusetts is proactively seeking to find, investigate, and prosecute unlawful attempts to exploit the COVID-19 pandemic and is asking hospitals to assist. U.S. Attorney Andrew Lelling sent a letter to leaders of Massachusetts hospitals asking them to report any “individuals and companies that may have acquired vital medical supplies in excess of what they would reasonably use, or for the purpose of charging exorbitant prices.” The Secretary of Health and Human Services has designated 15 categories of supplies as “scarce,” thereby enabling prosecutors to seek certain civil and criminal enforcement remedies against anyone accused of hoarding or gouging prices for those supplies. … More
Editors’ Note: This is the fourth in our start-of-year series examining important trends in white collar law and investigations in the coming year. Our previous entry discussed anti-corruption trends in 2020. Up next: a look at State Attorney General trends. Look for additional posts throughout the month of January.
More than halfway into the Donald Trump administration,… More
Editors’ Note: This is the second in our start-of-year series examining important trends in white collar law and investigations in the coming year. Our previous entry discussed SEC enforcement in 2020. Up next: a look at trends in anti-corruption and under the Foreign Corrupt Practices Act. Look for additional posts throughout the month of January.
2019 saw ongoing action in the healthcare space.… More
In United States ex rel. Kraus v. Wells Fargo & Co., No. 18-1746 (2d Cir. Nov. 21, 2019), two employees of banks later acquired by Wells Fargo alleged a “pervasive pattern” of fraud in connection with the securitization and sale of toxic mortgages. When the economy imploded, Wells Fargo looked for help from the Federal Reserve Banks (“FRBs”). In their False Claims Act suit,… More
Thanks to inexact language in a settlement agreement, a for-profit hospital chain can challenge whistleblowers’ eligibility for attorneys’ fees under the False Claims Act (“FCA”). The single sentence that spawned nearly 5 years of litigation was: “All Parties agree that nothing in this Paragraph or this Agreement shall be construed in any way to release, waive or otherwise affect the ability of CHS to challenge or object to [whistleblower’s] claims for attorneys’ fees,… More
On September 18, 2019, the Department of Justice announced a $21.36 million settlement to resolve a False Claims Act (“FCA”) lawsuit alleging a fraudulent kickback scheme through which a pharmaceutical company (Patient Care America, or “PCA”) induced doctors to write expensive and unnecessary prescriptions to military veterans. A False Claims Act settlement of this magnitude is not unusual, particularly in the healthcare industry (which accounted for $2.5 billion of the DOJ’s $2.8 billion in FCA settlements and judgments in 2018).… More
The U.S. Department of Justice (DOJ) continues to actively target the healthcare industry for False Claims Act (FCA) and other alleged violations, and it took significant steps to further its reach into the telehealth and genetic testing markets this week. Prosecutors in the Southern District of Florida (SDFL) indicted the CEO of a genetic testing company in an alleged referral-source kickback scheme in which, according to the indictment,… More
The Eleventh Circuit agreed with the trial court that the government must do more than present expert evidence that a physician’s clinical judgment was inaccurate to establish falsity under the False Claims Act. Nonetheless, the appellate court remanded for the trial court to consider additional evidence that, the government contends, establish falsity even under the standard now set by the Eleventh Circuit.
At issue was whether AseraCare Inc.… More
The Massachusetts Superior Court recently held that a qui tam relator’s analysis of publicly available information was subject to the public disclosure bar and that, no matter how involved or expert that analysis was, the relator was not the original source of the information alleged in the complaint. Thus, in Commonwealth ex rel. Johan Rosenberg v. JPMorgan Chase & Co., et al., SUCV2014-03323, Judge Kaplan,… More
Last week the Department of Justice announced that American Airlines will pay over $22 million to settle claims that it falsely reported delivery times for mail it delivered on behalf of the United States Postal Service.
Under a contract between USPS and American, the airline was responsible for picking up U.S. mail from various receptacles in the United States and in U.S. government offices abroad,… More
Late last month the U.S. Attorney’s Office for the District of Connecticut issued a press release regarding the latest False Claims Act (FCA) settlement involving the healthcare industry in New England. According to the Department of Justice (DOJ), Clinical Science Laboratory, Inc. (CSL) and its individual owners agreed to pay over $1.5 million to settle claims that they had violated federal and state FCA laws. The government stated that Massachusetts-based CSL provided urine drug testing services for substance abuse patients in Connecticut,… More
The Supreme Court, in a unanimous decision authored by Justice Thomas, agreed with the Eleventh Circuit that the False Claims Act’s “government knowledge” statute of limitations applies regardless of whether the government chooses to intervene in a qui tam suit.
Under the False Claims Act, a civil action must be filed by the later of 1) six years after the statutory violation, or 2) three years after the relevant facts are “known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances.” The Act also bars all claims brought more than ten years after the violation. … More
Recently, a Florida federal judge dismissed the Department of Justice’s (DOJ) False Claims Act (FCA) allegations against a compounding drug pharmacy and the pharmacy’s private equity (PE) owner. For two reasons, the case may be illustrative of the DOJ’s increasingly aggressive pursuit of what it perceives as fraud within the healthcare industry.
First, it is noteworthy that DOJ suffered a dismissal of its FCA claims. … More
The First Circuit recently revisited the pleading standard for retaliation claims under the False Claims Act, and reiterated its prior position that such claims are not subject to the same heightened pleading standard as direct FCA violation claims.
In Guilfoile v. Shields, 913 F.3d 178 (1st Cir. 2019), a former president for a group of healthcare entities that provided specialty pharmacy services to hospitals alleged the entities offered illegal “referral fees” to a consulting group to induce hospitals to award the entities contracts. … More
The Department of Justice (DOJ) announced recently that it reached a $63.5 million settlement with pathology lab Inform Diagnostics related to allegations of False Claims Act (FCA) and Stark Law violations. The government alleged that the company had illegally provided referral-source doctors with subsidies for electronic health records (EHR) systems and free or discounted technology consulting services. The case, which developed out of a whistleblower complaint, was prosecuted as a civil matter with the coordination multiple DOJ offices,… More