False Claims Act/Qui Tam Whistleblowers Litigation: Hot Buttons in 2017
Since its enactment, the False Claims Act (FCA) has become one of the most litigated pieces of federal legislation. The FCA has always been the U.S. taxpayers' number one partner in recovering large sums of money stolen from the U.S. government through fraud and similar misconduct. In 2016 alone, the U.S. government recovered more than $2.04 billion in FCA cases. The FCA is a demonstrably effective tool in combatting fraud against the government, but many nuances and hurdles remain. Counsel involved in these cases must confront numerous procedural and substantive challenges from pre-trial investigations through trial.
On March 29, a panel of key thought leaders, practitioners, FCA defense attorneys, and FCA qui tam lawyers assembled by The Knowledge Group will offer an extensive discussion of updates regarding the latest significant issues surrounding the FCA. This two-hour LIVE webcast aims to help the audience become well-versed in the recent developments in the FCA landscape and the trends to watch for in 2017 and beyond.
Some of the major topics that will be covered in this course are:
- Qui Tam False Claims Act Practice - An Overview, with an Emphasis on Recent Case Law Developments
- Recent Trends and Developments in DOJ’s Pursuit of Individual Liability under the False Claims Act
- U.S. ex rel. Escobar – the Latest Hurdles in Proving the Element of Materiality
- Recent Trends in the Use of Statistics in False Claims Act Cases
Kayla Kaplan, Attorney
Fried Frank, Harris, Shriver & Jacobson LLP
- The Yates Memo 18 Months Later: Update on Individual FCA Accountability
- Overview of Yates Memo
- FY2016 Statistics and FY2017 Outlook
- Cooperation and Conflict of Interest Concerns for Corporations
Sherrie R. Savett, Managing Shareholder
Berger & Montague, P.C.
- Warning Your Client of the Practicalities of False Claims Act Litigation: The Seal, Retaliation, Lengthy Delay
- False Claims Act litigation presents several challenges for whistleblowers that you should candidly discuss with your client before filing, including the likelihood of retaliation (and the protections available under the False Claims Act against retaliation), the delay in waiting for an intervention decision from the Government, and the inability to initially discuss the case with others due to the seal requirement. Additionally, whistleblowers who are involved in bankruptcy or divorce proceedings face particular challenges in disclosing their claims as an asset of their estate. The tension between the seal requirements and the disclosure obligations in these situations will be explored. In sum, it is important that your clients understand the long term and difficult commitment they are making by pursuing claims under the False Claims Act.
- Obtaining Evidence to Support Claims: Documents Which Can and Cannot Be Used, Confidentiality and Release Agreements
- The best evidence for False Claims Act cases is documentation that substantiates the fraud, including internal communications such as emails. Many whistleblowers are insiders and thus will be in a position to gather such evidence, but it is important that whistleblowers only obtain documents to which they have access in the ordinary course of business. If they adhere to appropriate boundaries, there is protection under the case law which sets forth the strong policy of encouraging whistleblowers to bring forth frauds. Whistleblowers face several potential problems if they improperly access other documents, including not being able to use the documents in subsequent litigation. This section will also briefly address the effect of confidentiality and release provisions in employment contracts with respect to whistleblowers’ ability to pursue claims under the False Claims Act.
- Evaluating Whether to Take the Case: Factors that Present Potential Pitfalls.
- When a client presents you with an ironclad case of fraud, you may think that you are set to file a slam dunk False Claims Act lawsuit. But the False Claims Act has a number of unique elements that you must carefully consider, including the first-to-file rule and the public disclosure bar. The parameters of the first to file and public disclosure bars will be explored. Additionally, given the very high penalties under the False Claims Act, it is important to evaluate the solvency of the defendants and their ability to enter into a substantial settlement or satisfy a judgment. Finally, early communication with the U.S. Attorney’s office that will review and potentially intervene in your case may provide extremely valuable feedback with respect to improving your complaint before filing.
- Medicare Advantage Fraud Presents Growth Opportunity.
- An increasing number of Medicare beneficiaries are electing to receive insurance coverage through Medicare Advantage plans, under which private entities (rather than the Government) directly provide coverage. Fraud in connection with Medicare Advantage plans presents additional potential avenues of liability under the False Claims Act.
Susan R. Hershman, Senior Counsel
Greenberg Gross LLP
- What’s so important about materiality in the FCA context? Materiality is an element of liability for violation of the FCA. In other words, if materiality plus the other elements (claim presentation (or causation thereof), falsity, and scienter) are proven, then the plaintiff is entitled to penalties. For proof of damages, the plaintiff needs more than materiality; the plaintiff needs to prove actual causation of injury and show monetization of that injury in damages.
- The context:
- Cases prior to Escobar: the natural tendency standard
- FERA: the 2009 FCA statute
- Escobar itself: What is the Escobar materiality standard?
- The Escobar materiality standard in relation to the prior history – plaintiff and defense arguments
- Is the Escobar materiality standard objective or subjective?
- Is materiality a question for the judge or the jury?
- Does Escobar’s materiality standard ever not apply?
- Optional: What happens to materiality when a government statute states that compliance with a certain term or condition is required for a contract or payment?
- Does the defendant have to have the requisite FCA scienter regarding materiality, as well as falsity?
- Optional: What happens when the government knows of the falsity and keeps on paying?
Stefan Boedeker, Managing Director
Berkeley Research Group
- Proper Universe Definition
- Proper Selection of Sampling Unit
- Construct Sampling frame
- Calculate Sample Size
- Determine Sampling Methodology
- Apply Random Selection Mechanism
- Test the Random Sample for Representativeness
- Proper Review Procedures
- Objective Measurements
- Proper Extrapolation to the Population
- Address Issues of Non-Sampling Error
Who Should Attend:
- Attorneys General
- Senior Management
- In-House Counsel
- Corporate Counsel
- Chief Compliance Officers
- General Counsel
- Litigation Attorneys
- Other interested Professionals and Organizations
Kayla Stachniak Kaplan, senior associate at Fried Frank and a member of the Firm’s False Claims Act and FIRREA practice group, represents corporations in a variety of complex civil litigation matters, with an emphasis on cases arising under the civil FCA and, in particular, cases involving the financial, aerospace, and defense industries. Ms. Kaplan has been a contributing co-author of FraudMail Alert®, which regularly reports on significant developments in the FCA arena. Ms. Kaplan was named a James Kent Scholar and received her JD from Columbia Law School in 2009. She received her BS, summa cum laude, and BA, summa cum laude, from Tulane University in 2006. She is admitted to practice in the District of Columbia, Maryland, and the United States District Court for the District of Columbia.
Kayla Stachniak Kaplan, senior associate at Fried Frank and a member of the Firm’s False Claims Act and FIRREA practice …
With over twenty-five years of experience, Mr. Boedeker provides statistical and economic consulting to a variety of clients including providers, payors, and federal, state and local Government agencies. Mr. Boedeker has extensive experience in assisting healthcare organizations where complex economic issues have to be assessed and where complex statistical methods are necessary to answer questions of liability, over-/underpayments and/or damages. He has extensive experience with Government agencies such as OIG, CMS and DOJ when assessing the appropriateness of claims submission and payment practices based on statistical samples. In addition, Mr. Boedeker has extensive experience in assisting providers with statistical sampling expertise in ZPIC audits and Qui-Tam cases. He also coordinated statistical sampling methodology on numerous healthcare audits and served as the statistical expert with the IRO for healthcare organizations, including hospitals and DME companies in response to Corporate Integrity Agreements.
With over twenty-five years of experience, Mr. Boedeker provides statistical and economic consulting to a variety of clients including providers, …
Ms. Savett is Co-Chair of the Whistleblower, Qui Tam & False Claims Act Group as well as the Securities Fraud Group at Berger & Montague PC in Philadelphia. She has practiced in the areas of securities litigation, commercial litigation and class actions since 1975. She has been actively practicing in the False Claims Act field since 2000 and has participated in several major cases involving Medicare and Medicaid fraud which resulted in settlements on behalf of the United States and various states which exceeded $1 billion collectively. Ms. Savett received her B.A., summa cum laude, from the University of Pennsylvania where she was a member of Phi Beta Kappa and her J.D. from the University of Pennsylvania Law School. She has been named a Pennsylvania Super Lawyer every year from 2003-2016 and has been recognized by Lawdragon as one of the 500 Leading Lawyers in America.
Ms. Savett is Co-Chair of the Whistleblower, Qui Tam & False Claims Act Group as well as the Securities Fraud …
Susan R. Hershman is Senior Counsel in Greenberg Gross LLP, resident in the Los Angeles office, and chair of its False Claims Act practice, in which the firm represents whistleblowers and advises defendants and potential defendants in large and novel cases. She has 37 years’ experience in complex commercial litigation, including the past 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 cases have involved 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; 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 Senior Counsel in Greenberg Gross LLP, resident in the Los Angeles office, and chair of its …
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About Fried Frank, Harris, Shriver & Jacobson LLP
From offices located in the world's principal financial centers, Fried, Frank, Harris, Shriver & Jacobson LLP’s lawyers provide advice to clients regarding their most critical legal and business needs. Fried Frank’s False Claims Act and FIRREA attorneys have extensive experience in every facet of the civil False Claims Act, and have been on the cutting edge of litigation and debate about the interpretation and scope of both statutes – the False Claims Act and the Financial Institutions Reform, Recovery and Enforcement Act of 1989. The Firm regularly represents financial industry, defense, healthcare, and other government contractors in high stakes cases. The Firm’s False Claims Act and FIRREA practitioners also assist and represent entities not normally associated with federal and state fraud investigations, such as municipal airport authorities, computer manufacturers, private and state universities, academic medical centers, import and export companies, major accounting and consulting firms, magazine publishers, and oil and gas exploration companies.
About Berkeley Research Group
Berkeley Research Group is a leading global strategic advisory and expert consulting firm that provides independent advice, data analytics, authoritative studies, expert testimony , investigations, and regulatory and dispute consulting to Fortune 500 corporations, financial institutions, government agencies, major law firms and regulatory bodies around the world.
BRG Experts and consultants combine intellectual rigor with practical, real-world experience and an in-depth understanding of industries and markets. Their expertise spans economics and finance, data analytics and statistics and public policy in many of the major sectors of our economy , including healthcare, banking, information technology, energy, construction, and real estate.
Named by Forbes as one of America’s Best Management Consulting Firms in 2016, BRG is headquartered in Emeryville, California, with offices across the United States and in Asia, Australia, Canada, Latin America, the Middle East, and the United Kingdom.
About Berger & Montague, P.C.
Berger & Montague is a full-spectrum class action and complex civil litigation firm, with nationally known attorneys highly sought after for their legal skills. The firm has been recognized by courts throughout the country for its ability and experience in handling major complex litigation, particularly in the fields of antitrust, securities, mass torts, civil and human rights, whistleblower cases, employment, and consumer litigation. In numerous precedent-setting cases, the firm has played a principal or lead role.
The National Law Journal, which recognizes a select group of law firms each year that have done "exemplary, cutting-edge work on the plaintiffs side," has selected Berger & Montague in 11 out of the last thirteen years (2003-05, 2007-13, 2015) for its “Hot List” of top plaintiffs’ oriented litigation firms in the United States. The firm has also achieved the highest possible rating by its peers and opponents as reported in Martindale-Hubbell.
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®.