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FCA NOW

Government Enforcement and Corporate Investigations Practice Group

Enforcement / Procedure / Relators / Scienter

10 Aug, 2023

Supreme Court’s Recent Decision on FCA’s Scienter Standard Potentially Raises Threshold for Government to Establish “Reckless Disregard”

On June 1, 2023, a unanimous Supreme Court decision sought to clarify the meaning of “scienter” in the FCA context, which deals with the defendant’s knowledge (or lack thereof) that a claim for payment was false and intent to submit the false claim.  See United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391 (2023) (“SuperValu”).  There, the Court ruled that “[f]or scienter,...

Dismissal Standard / Pleading Standards / Procedure / Relators / Retaliation Claims

20 Dec, 2022

Third Circuit Confirms Expansion of Anti-Retaliation Standard Under the False Claims Act

On November 30, 2022, the Third Circuit Court of Appeals vacated dismissal of a retaliation action brought by Don Ascolese (“Ascolese”) under the False Claims Act (“FCA”).  See United States ex rel. Don Ascolese v. Shoemaker Constr. Co., No. 21-2899, ECF No. 30 (3d Cir. 2022) (“3d Cir. Opinion”). In the complaint before the lower court, Ascolese alleged that Shoemaker Construction Co., McDonough Bolyard Peck...

Healthcare / Pleading Standards / Procedure

4 Nov, 2022

Supreme Court Declines to Weigh In on Latest Dispute Over Pleading Standard for Causes of Action Brought Under the False Claims Act

The Supreme Court recently denied three petitions for writs of certiorari, opting not to clarify the heightened pleading requirements for allegations of fraud under the False Claims Act (“FCA”). The cases for which certiorari was denied are Molina Healthcare of Illinois v. Prose, No. 21-1145; United States ex rel. Owsley v. Fazzi Associates, Inc., No. 21-936; and Johnson v. Bethany Hospice LLC, No. 21-462. For...

Healthcare / Overpayments / Penalties / Persons subject to FCA / Settlements

13 Oct, 2022

Massachusetts Follows Several Other States in Settling with Medicaid Managed Care Giant

On September 29, 2022, Massachusetts Attorney General Maura Healey announced that Medicaid managed care and pharmacy benefits giant Centene Corporation agreed to pay $14 million to resolve claims that it overcharged MassHealth, the Massachusetts Medicaid program.  This latest settlement comes shortly after Centene struck similar deals in other states, including a $33 million deal to end a False Claims Act (“FCA”) suit in Washington. Centene...

Settlements

10 Oct, 2022

DC Circuit Adopts Pro Tanto Rule for “Common Damages” in FCA Claims Involving Multiple Defendants

The United States Court of Appeals for the D.C. Circuit recently considered the extent to which settlements in related False Claims Act cases must be offset against damages owed by non-settling parties – and the appropriate measure for allocating previous settlements in later related cases. In United States v. Honeywell Int’l Inc., the Department of Justice sued Honeywell for providing allegedly defective material in bulletproof...

PPP Loans / Settlements

26 Sep, 2022

DOJ Announces First-In-The-Nation False Claims Act Settlement with PPP Lender

The government has been actively investigating and prosecuting Paycheck Protection Program (“PPP” or the “Program”) fraud ever since the Small Business Administration (“SBA”) rolled out the Program in the Spring of 2020 to provide SBA-backed loans to help eligible businesses maintain their workforces during the COVID-19 pandemic. At first the government’s efforts focused on cases of obvious fraud, resulting in criminal charges. The criminal prosecutions...

Enforcement / Falsity / Healthcare / Kickbacks / Relators

23 Sep, 2022

Eighth Circuit Analyzes Scope of FCA Liability Under Anti-Kickback Statute

On July 26, 2022, the Eighth Circuit Court of Appeals issued an opinion interpreting the standard for the causal link the government must show to establish that a “false or fraudulent” claim under the False Claims Act (“FCA”) included “items or services resulting from a violation” of 42 U.S.C. § 1320a-7b(g), the federal anti-kickback statute.  United States ex rel. Cairns v. D.S. Med. LLC, 2022...

Kickbacks

31 Aug, 2022

A Hefty Speaking Fee: Biogen Inc. Agrees to Settle False Claims Act Suit In Violation of Anti-Kickback Statute for $900 Million

On July 20, 2022, Biogen Inc. (“Biogen”) disclosed in a quarterly earnings report that it had agreed to pay $900 million to resolve a qui tam claim by a former employee that the company had violated the False Claims Act (“FCA”) and the Federal Anti-Kickback Statute (“AKS”). See Biogen Reports Second Quarter 2022 Results; see also United States ex rel. Bawduniak v. Biogen Idec, Inc.,...

Uncategorized

18 Jul, 2022

DOJ Secures FCA Settlement with Health Services Companies

The U.S. Attorney’s Office for the District of Massachusetts recently secured a settlement agreement resolving allegations that Molina Healthcare, Inc. and its prior subsidiary, Pathways of Massachusetts, which provide mental health services in Springfield and Worcester, Massachusetts, violated the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. and the Massachusetts-equivalent to the FCA. The settlement agreement also resolves similar claims brought by employees...

Dismissal Standard

22 Jun, 2022

SCOTUS to Address Government’s Authority to Dismiss FCA Cases

The United States Supreme Court recently granted review of a decision from the Third Circuit that affirmed the dismissal of an FCA case at the government’s request.  Polansky v. Exec. Health Res., 17 F.4th 376, 393 (3d Cir. 2021); Polansky v. Exec. Health Res., 21-1052 (June 21, 2022).  Polansky resisted the government’s request to dismiss his case, arguing that the government had no authority to...