Whistleblower Watch

Whistleblower Watch

Reports and Analysis of Developments in Whistleblower Law

Jason M. Crawford

Jason M. Crawford

Jason M. Crawford is an associate in the firm’s Washington, D.C. office, where he practices in the Government Contracts, Litigation, and Privacy & Cybersecurity groups. His practice spans a range of industries, including health care, transportation, and education. He represents domestic and multinational companies in counseling and complex litigation. Jason first joined Crowell & Moring in 2012 and returned in 2014 after completing a one-year clerkship for the Honorable Thomas C. Wheeler, U.S. Court of Federal Claims.

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Whistle(blowing) While You Work: GAO Recommends Improvements to Whistleblower Protections Pilot Program

Posted in False Claims Act (FCA)
On March 2, 2017, the U.S. Government Accountability Office (GAO) published a report highlighting necessary improvements to effectively implement the Whistleblower Protections Pilot Program (WPPP).  The WPPP, introduced in the National Defense Authorization Act for Fiscal Year 2013, and made permanent by Congress in December 2016, expanded whistleblower rights against reprisal for employees of contractors,… Continue Reading

DoD Prohibits FY17 Funds For Contractors with Restrictive Confidentiality Agreements

Posted in Department of Defense
On November 14, 2016, the Department of Defense issued a class deviation prohibiting DoD agencies from awarding FY 2017 funds to companies that require employ­ees or subcontractors to sign internal confiden­tiality agreements or statements that restrict them from lawfully reporting waste, fraud, or abuse. As described here, the deviation comes at a time of increased… Continue Reading

Should Loose Lips Sink Whistleblower FCA Suits?

Posted in False Claims Act (FCA), Uncategorized
For the third consecutive term, the Supreme Court will decide a case involving the False Claims Act (“FCA”). On November 1, 2016, the Supreme Court heard oral arguments in State Farm and Casualty Co. v. United States ex rel. Rigsby on the question of what standard should govern the decision whether to dismiss a whistleblower’s claim… Continue Reading

Rise in FCA Penalties Could Incentivize More Whistleblower Suits

Posted in Department of Justice (DOJ), False Claims Act (FCA)
On June 30, 2016, the Department Of Justice, published an interim final rule nearly doubling the penalty range for violations under the civil False Claims Act (FCA).  The current range is $5,550-$11,000 for each false claim, but under the new rule the penalty for each false claim would be no less than $10,781 and not… Continue Reading

California State Whistleblower Claim Nets $30 Million Anti-Kickback Settlement from Life Sciences Company

Posted in State Whistleblower Laws
Life sciences companies continue to be the focus of whistleblower actions, not just on the federal level, but on the state level as well. Bristol-Myers Squibb (“BMS”) recently agreed to pay the State of California $30 million to resolve allegations stemming from a whistleblower lawsuit alleging that it paid illegal kickbacks to physicians.  The settlement… Continue Reading

High Court Recognizes FCA Liability Based on Implied Certification

Posted in False Claims Act (FCA)
Last week in Universal Health Servs. v. U.S. ex rel. Escobar, the Supreme Court recognized the implied certification theory of FCA liability, subject to “rigorous” and “demanding” application of the scienter and materiality standards.  The Court unanimously held that a defendant may be liable under the FCA when, in connection with a claim for payment… Continue Reading

Supreme Court to Hear FCA Seal Violation Issue

Posted in False Claims Act (FCA)
For the third consecutive year, the Supreme Court will hear a case involving the False Claims Act (FCA).  On May 31, the Court granted review in State Farm Fire and Cas. Co. v. U.S. ex rel. Rigsby to address the applicable standard for dismissal in FCA cases when whistleblowers (referred to as relators under the… Continue Reading

Court Dismisses Counterclaim Against FCA Whistleblower for Disclosing Confidential Information

Posted in False Claims Act (FCA)
On May 9, in United States ex rel. Cieszynski v. LifeWatch Servs., the U.S. District Court for the Northern District of Illinois dismissed the defendant health care company’s counterclaim against a former employee, ruling that Matthew Cieszynski’s disclosure of protected patient information fell within the public policy protections for whistleblowers.  In the underlying False Claims… Continue Reading

FCA Whistleblowers’ Increasing Reliance on “Tainted Claim” Damages Theory

Posted in False Claims Act (FCA)
In a “Feature Comment” published in The Government Contractor, Crowell & Moring attorneys explore how False Claims Act (FCA) plaintiffs are taking an increasingly aggressive posi­tion on how damages should be calculated—i.e., that the Government is entitled to three times the amount of the total contract value, regardless of any value actually received, because the claim for… Continue Reading

Supreme Court Hears Arguments on FCA Implied Certification Theory

Posted in False Claims Act (FCA)
The Supreme Court heard arguments today in Universal Health Services, Inc. v. United States ex rel. Escobar, a False Claims Act (FCA) case with potentially far-reaching consequences for whistleblowers, healthcare providers, government contractors, and all companies and institutions that receive federal dollars.  There are two questions before the Court: (1) whether the “implied certification” theory… Continue Reading

No Escaping (Legislative) History

Posted in False Claims Act (FCA)
Last month, in Gierer v. Rehab Medical, the U.S. District Court for the Eastern District of Missouri granted the defendant’s motion to dismiss the portions of the whistleblower’s complaint that alleged punitive damages against her former employer pursuant to her § 3730(h) FCA retaliation claim. Courts have routinely held that Congress did not intend for… Continue Reading

Cert Granted on Implied Certification Theory

Posted in False Claims Act (FCA)
Last week, in a case that will have a significant impact on the health care and government contracting industries, and also on potential whistleblowers, the Supreme Court granted certiorari in Universal Health Services, Inc. v. United States ex rel. Escobar, a False Claims Act (FCA) case from the First Circuit. By agreeing to hear the… Continue Reading

United States v. AseraCare: A Look at the First (and Perhaps Last) Bifurcated FCA Trial

Posted in False Claims Act (FCA)
“False Claims Act cases have been particularly hot in 2015.”  So reads the first line of Judge Karen Bowdre’s order granting a new trial in United States v. AseraCare Inc., No. 2:12-CV-245-KOB (N.D. Ala. Nov. 3, 2015).  If 2015 has been a “hot” year for FCA cases, then AseraCare—and its unprecedented procedural twists—is undoubtedly one… Continue Reading

Ninth Circuit Overturns Twenty-Three Year Old Precedent Regarding Original Source Status

Posted in False Claims Act (FCA)
In U.S. ex rel. Hartpence v. Kinetic Concepts, the Ninth Circuit recently overturned its 1992 decision in Wang, which required relators to have played a role in publicly disclosing the allegations and information on which their suits are based to qualify as an “original source.” For example, under Wang, the public disclosure of information in… Continue Reading

Heightened Notice Presumption Still Applicable After Amendments to FCA Retaliation Statute

Posted in False Claims Act (FCA), Whistleblower Retaliation
Several commentators have cited the recent decision in Mikhaeil v. Walgreens (E.D. Mich. Feb. 24, 2015) as suggesting that the amendments to the anti-retaliation provision of the False Claims Act (FCA) may preclude a defense previously available in FCA retaliation cases.  But any reports about the demise of the “heightened notice presumption” are greatly exaggerated .… Continue Reading

State Department OIG Issues Report on the Use of Confidentiality Agreements

Posted in Whistleblower Retaliation
On March 30, 2015, the Office of the Inspector General for the State Department issued a report on the use of confidentiality agreements by the thirty highest-grossing State Department contractors.  While none of the companies had policies that were “overly restrictive,” the OIG found that that 13 of the contractors had policies that contained provisions… Continue Reading

Senators Announce Formation of Whistleblower Protection Caucus

Posted in Whistleblower Retaliation
On February 25, 2015, Senator Charles Grassley (R-IA) announced the official formation of the Senate Whistleblower Protection Caucus.  According to the press release, the caucus will “foster bipartisan discussion on legislative issues affecting the treatment of whistleblowers and serve as a clearinghouse for current information on whistleblower developments of interest in the Senate.”  The caucus… Continue Reading