Whistleblower Watch

Whistleblower Watch

Reports and Analysis of Developments in Whistleblower Law

Category Archives: False Claims Act (FCA)

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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

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

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

Relator-Friendly Ruling Highlights Dangers of Imprecise Settlement Agreements

Posted in Department of Justice (DOJ), False Claims Act (FCA)
The Middle District of Tennessee ruled recently that Community Health Systems, Inc. (CHS) cannot rely upon the “first to file” and “public disclosure” bars to avoid paying attorneys’ fees and costs where a settlement agreement did not specify these grounds for precluding such awards to the relators. This outcome should warn defense counsel to clearly… Continue Reading

D.C. Circuit Affirms (Again) Sanctity of Privileged Internal Investigations of Whistleblower Claims

Posted in False Claims Act (FCA), Internal Investigations
Employers hoping to assert privilege over documents created in internal investigations are breathing a sigh of relief in the wake of the D.C. Circuit’s second decision in In re: Kellogg Brown & Root, Inc. The D.C. Circuit granted KBR’s request for a writ of mandamus on attorney-client privilege grounds to prevent a whistleblower from obtaining… 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

FCA Claim Dismissed Because Whistleblower Not the “Original Source” of Pricing Information

Posted in False Claims Act (FCA)
The Third Circuit recently affirmed a ruling that the False Claims Act’s (FCA) “original source rule” is not satisfied if a whistleblowing relator merely compiles publically available information. In U.S. ex rel. Morgan v. Express Scripts, Inc., the court affirmed the dismissal of a whistleblower’s FCA allegations because the relator was not an original source… Continue Reading

Crowell’s McLaughlin Discusses Supreme Court Decision in Long-Running KBR v. Carter FCA Litigation

Posted in False Claims Act (FCA)
Brian Tully McLaughlin, Counsel in Crowell’s Government Contracts Group, was interviewed by Tom Temin of Federal News Radio on Monday about the Supreme Court’s decision in KBR v. United States ex rel. Carter that we profiled on the blog last week. Click here to listen to the audio recording, during which the participants discuss the case,… Continue Reading

Fourth Circuit Revives FCA Retaliation Claims Based on Triple Canopy Principles

Posted in False Claims Act (FCA), Whistleblower Retaliation
On Thursday, the Fourth Circuit issued an unpublished opinion in Young v. CHS Middle East that reversed and remanded the dismissal of two whistleblowers’ False Claims Act (FCA) retaliation claims against a U.S. Department of State civilian medical services subcontractor. The reversal was based in part on the Fourth Circuit’s recent adoption of the “implied certification”… 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

Crowell & Moring Discusses Recent Developments in the FCA’s Public Disclosure Bar

Posted in Department of Justice (DOJ), False Claims Act (FCA)
In a recent article for the BNA Federal Contracts Report, three C&M attorneys analyzed recent developments in the “public disclosure bar,” which prevents private whistleblowers in certain circumstances from bringing suit under the False Claims Act.  Recent judicial opinions have cabined what it means to be “publicly disclosed.”  The Seventh Circuit’s view – that “[d]isclosure… Continue Reading

The Changing Landscape of Internal Investigations – Crowell & Moring’s 2015 OOPS Event

Posted in Events, False Claims Act (FCA), Internal Investigations
Crowell & Moring’s 31st annual Ounce of Prevention Seminar (OOPS) will take place in Washington, D.C. from May 5-6 and in Marina del Rey, CA on May 14. This year’s seminar, “White House v. Congress:  Government Contractors Bracing for the Showdown in Washington,” will cover an array of policies and legislation that will have sweeping… Continue Reading

Court Finds No Individual Liability Under the False Claims Act’s Retaliation Provision

Posted in False Claims Act (FCA), Whistleblower Retaliation
The tide continues to turn toward courts finding individual supervisors immune from liability under the anti-retaliation provisions of the False Claims Act (FCA). In Lampenfeld v. Pyramid Healthcare, Inc., Judge Brann of the Middle District of Pennsylvania dismissed the plaintiff’s FCA retaliation claim against her supervisor finding that the greater weight of the law held… Continue Reading

Tenth Circuit Enforces Whistleblower’s Release of Retaliatory Discharge Claim

Posted in False Claims Act (FCA), Whistleblower Retaliation
The Tenth Circuit recently affirmed the enforceability of releases of retaliation claims under the False Claims Act (FCA). In VanLandingham v. Grand Junction Regional Airport Authority, plaintiff, who was director of security at the Grand Junction, Colorado airport, alleged that she was demoted and ultimately terminated after refusing to comply with her supervisor’s misrepresentation to… Continue Reading