Implied Certification and Materiality: Then and Now in False Claims Act Lawsuits
The False Claims Act (FCA) is the primary civil enforcement tool used by the U.S. Department of Justice (DOJ) when addressing and managing fraud committed by individuals and entities against government programs.
In mid-2016, in the case of U.S. ex rel. Escobar v. Universal Health Services, Inc., the Supreme Court significantly changed the landscape of FCA enforcement by establishing requirements for implied certification (a theory of falsity) and for materiality. These changes both broadened the avenues for whistleblowers and the government to bring complaints and made new defenses available to defendants. These changes also have important implications for discovery regarding government programs. It is not unreasonable to call Escobar an earthquake in False Claims Act practice.
In this LIVE Webcast, a panel of thought leaders and professionals brought together by The Knowledge Group will provide the audience with an in-depth analysis of recent trends and developments in the 2018 False Claims Act landscape after Escobar. Our speakers will identify the significant implications and impacts of the decision, based on a flurry of new litigation and court opinions in the two years since the Escobar earthquake. Our speakers will also present best practices and practical tips to avoid potential risks and legal pitfalls.
Key topics include:
- Implied Certification – Then and Now
- Materiality – Then and Now
- Trends and Updates in 2018 after Escobar
- What Lies Ahead
Greenberg Gross LLP
Madsen, Prestley & Parenteau LLC
Akin Gump Strauss Hauer & Feld, LLP
- Implied certification after Escobar – Peter Prestley
- Materiality after Escobar (40-50 minutes total)
- Introduction to Materiality – before and after Escobar (Overview of how the materiality requirement has changed post-Escobar: a “rigorous” and “demanding” standard) – Carroll Skehan
- Materiality and the “holistic” approach – Susan Hershman
- Continued Government Payment and Materiality – Carroll Skehan
- Significance of continued payment of claims post-Escobar: a potential defense to the materiality element – Carroll Skehan
- Review of several recent cases in which FCA defendants have prevailed using evidence of continued government payments – Carroll Skehan
- DOJ and relators’ response to the continued payment cases: additional conditions on government payment – Carroll Skehan
- In two Circuit Court cases, the government’s conduct after learning of the allegations of false claims supported materiality – Susan Hershman
- Materiality and the government’s intervention/declination decision – Susan Hershman
- Materiality and the special case of one agency’s or government’s licensing/approval of a product or service for which another agency pays – Susan Hershman
- Open issues for future FCA actions: how will courts treat an FCA defendant’s knowledge of materiality?
- Defense perspective – Carroll Skehan
- Plaintiff’s perspective – Susan Hershman
Who Should Attend:
- Attorneys General
- False Claims Act Lawyers
- In-house Counsel
- Litigation Officers
- Senior Management
- Public and Private Companies
- Other Related and Interested Professionals
Susan R. Hershman is the chair of the False Claims Act and qui tam practice at Greenberg Gross LLP (Los Angeles). She has over 39 years’ experience in complex commercial litigation, including 21 years specializing in the False Claims Act as an Assistant U.S. Attorney at the Los Angeles United States Attorney’s Office, Civil Fraud Section, at the time the largest dedicated federal affirmative civil enforcement office in the nation, outside of Washington, D.C. As the Deputy Chief of that Section for more than 12 years, and co-Deputy Chief for over five years, she supervised an average of more than 71 False Claims Act and other government affirmative cases per year. She also was lead counsel in many such successful multi-million-dollar cases, including a Medicare Part C and Medicaid settlement with SCAN Healthcare totaling $323.67 million.
Her own False Claims Act cases have involved both the federal and State False Claims Acts; the Federal Acquisition Regulation; government health care law (Medicare, Medicaid, Tricare, and other programs); government contract law; aerospace and defense contracting; defense contract cost accounting; defective products and false testing; classified investigations and litigation; U.S. Small Business Administration issues; international False Claims Act issues; the California Insurance Fraud Prevention Act; and whistleblower issues. She has decades of experience working with the major federal agencies affected by the Act, including the Centers for Medicare and Medicaid Services, the Department of Defense, NASA, and the National Reconnaissance Office, and in industries involving a wide variety of companies and products, including pharmaceutical manufacturers, hospitals, physician practices, durable medical equipment, satellites, rockets, and cutting-edge nanotechnology.
Ms. Hershman received her J.D. from the University of California at Berkeley Law School and her A.B. from Harvard College of Harvard University, Cambridge, Massachusetts.
Susan R. Hershman is the chair of the False Claims Act and qui tam practice at Greenberg Gross LLP (Los …
Peter Prestley is a partner in the firm of Madsen Prestley and Parenteau LLC, and pursues a practice devoted solely to representing individuals in employment matters. His maintains his practice in Hartford Connecticut.
He represents senior executives and professionals providing legal advice, negotiation, and litigation services. This includes providing such services as the employment relationship is formed, including new enterprises, as it is maintained, and when it ends, as well as afterwards. He also provides a full range of legal services to potential and actual whistleblowers under federal and state law, especially the federal False Claims Act.
Mr. Prestley is former Deputy General Counsel of The Travelers, where he had responsibility for complex litigation, including employment and employee benefit matters, as well as responsibilities in the areas of tax, business, corporate, and international business law. In 1994 Mr. Prestley moved from Travelers to represent Travelers at the firm of Simpson Thacher & Bartlett, NY, NY, concentrating his practice on major complex litigation.
Peter Prestley is a partner in the firm of Madsen Prestley and Parenteau LLC, and pursues a practice devoted solely …
Carroll Skehan’s practice covers a variety of litigation and investigation matters, including complex civil litigation, government and internal investigations, and white-collar criminal defense.
Ms. Skehan has represented individual and corporate clients in matters before state and federal courts, as well as in connection with investigations by the Department of Justice and various federal agencies. She regularly assists companies in conducting investigations and responding to government inquiries related to compliance matters and allegations of fraud. Ms. Skehan also has particular experience representing clients in cases brought under the False Claims Act (FCA).
Ms. Skehan received her J.D. magna cum laude in May 2012 from The Catholic University of America Columbus School of Law, where she was a lead articles editor of the Catholic University Law Review. She earned her B.A. cum laude in English from the College of the Holy Cross.
Carroll Skehan’s practice covers a variety of litigation and investigation matters, including complex civil litigation, government and internal investigations, and …
Print and review course materials
Method Of Presentation:
Experience in False Claims Act (FCA) litigation
NY Category of CLE Credit:
Areas of Professional Practice
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About Greenberg Gross LLP
Greenberg Gross LLP, an elite law firm that specializes in high-stakes business litigation, represents public and private companies, prominent law firms, nonprofit organizations, high-level executives, and others in their most significant cases. It is regularly ranked as a “Best Law Firm” by U.S. News Media Group and Best Lawyers®.
About Madsen, Prestley & Parenteau LLC
Madsen Prestley & Parenteau LLC is an Employee/Relator employment and False Claim Act law firm which has been fighting for individuals for over 20 years.
About Akin Gump Strauss Hauer & Feld, LLP
Akin Gump Strauss Hauer & Feld LLP was founded in Texas in 1945 by Robert Strauss and Richard Gump in a spirit of optimism and with a mission of integrity. The firm has sustained this guiding vision to the present. Every day, Akin Gump professionals tackle complex and highly consequential legal engagements with keen commercial awareness and dedication to their clients’ business goals.
Recognized by BTI Consulting Group as a Client Service A-Team as one of the top 30 law firms in the U.S., Akin Gump is known for its strength in litigation and high-stakes appellate work, leadership in groundbreaking transactions and depth in public policy. Akin Gump professionals possess a sharp understanding of the intangible factors in economic and political infrastructures, combining it with first-hand government experience at the highest levels around the world.