The False Claims Act (“FCA”) is one of the federal government’s most important anti-fraud tools. While the federal government can file its own FCA lawsuit, whistleblowers play an integral role in exposing fraud and other improper activities against the government.
Join the Federal Bar Association’s Qui Tam section February 27-28, 2018 as it provides fresh analysis on the rapidly changing landscape of FCA enforcement. This two-day conference in Washington, D.C. at DLA Piper will feature speakers who have prosecuted FCA cases on behalf of whistleblowers. Sign up on or before February 2, 2018 for the Qui Tam Conference at www.fedbar.org/quitam18 to save on registration rates.
“Opening Remarks & Case Law Roundup” moderated by John R. Thomas, Jr. (Gentry Locke Rakes & Moore, LLP) and speakers John T. Boese (Fried Frank) and James B. Helmer, Jr. (Helmer, Martins, Rice & Popham Co., L.P.A.) will address the latest rulings interpreting the FCA.
Case in point, a key decision issued Dec. 1, 2017 by the U.S. Court of Appeals for the Ninth Circuit blocks qui tam relators from bringing copycat FCA lawsuits. The Ninth Circuit in United States ex rel. Max Bennett v. Biotronik, Inc. construed the “government-action bar,” one of the defenses to a parasitic FCA action, to offer protection to defendants who resolve one action from having to defend a whistleblower’s effort to capitalize on claims not previously litigated.
The FCA contains several provisions that are aimed at discouraging “parasitic” or duplicative qui tam actions. One such provision, known as the “government-action bar” prohibits a relator from bringing a qui tam suit “based upon allegations or transactions which are the subject of a civil suit . . . in which the Government is already a party.” In essence, if the government has intervened in a case “based upon [the same] allegations or transactions,” a later action is barred by 31 U.S.C. § 3730(e)(3).
On December 31, 2009, relator Brian Sant filed a qui tam suit against a medical device supplier, Biotronik, alleging that it committed government fraud by promoting unnecessary medical devices, bribing physicians, and using bogus clinical studies as a means to provide kickbacks to physicians. The government investigated Sant’s claims before intervening and settling the claims based on the promotion of unnecessary medical devices and bribery. However, the settlement did not include the alleged sham clinical studies, and those claims were dismissed from the case without prejudice.
Meanwhile, after Sant’s complaint was filed, Bennett, a former Biotronik product manager, filed a qui tam action that paralleled Sant’s claims. Bennett’s complaint provided further details, though it did not contain any new claims. Biotronik filed a motion to dismiss, asserting, among other things, the government-action bar. The district court dismissed the action, and Bennett appealed.
Deciding a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit held that the government-action bar prohibits additional relators from raising the same claims in subsequent qui tam actions when the government has intervened in the original action, regardless of the particular claims that the government elects to pursue. This ruling will provide defendants with finality in qui tam actions.
Register now for the Qui Tam Conference at www.fedbar.org/quitam18.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.