Qui Tam & the False Claims Act: Future Trends and Developments
Qui Tam provisions under the False Claims Act (FCA) continue to be one of the top tools used when civilly prosecuting fraud today. With the rising annual recoveries and whistleblower cases filed under FCA, it is not surprising that the government continues to strengthen it and make it more daunting for anyone who attempts to do fraudulent acts.
As the FCA sustains its exciting landscape, it is important to be abreast of the recent developments as well as trends that are dawning in 2017 and beyond. Updates in FCA litigation, strategies and tactics when facing FCA investigations, and the recently decided Escobar case are just some of the most interesting topics this year.
In light of these important developments, The Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth analysis of the False Claims Act. In this LIVE webcast, practitioners will discuss the significant issues and the latest insights surrounding FCA, specifically its qui tam provisions. Speakers will also offer notable outlook of the ever-changing FCA landscape.
Some of the major topics that will be covered in this course are:
- The False Claims Act and Its Qui Tam Provisions – Overview
- Latest Updates in FCA Litigation
- Tactics When Facing FCA Investigations
- Compliance Strategies
- Prosecuting False Claims Act cases from standpoint of Relators & Counsel
- DOJ settlement developments
Paul Hastings LLP
- FCA by the Numbers: A Quick Recap of the DOJ’s FCA Recoveries in 2016
- The DOJ, Relators’ Counsel, and Parallel Investigations
- Developments in 2017 and What May Lie Ahead – A Discussion of the Notable Conduct Covered by Recent Settlements
- FDA Investigations into drug quality, data integrity, and false statements
- Specialty products and patient assistance programs
Greenberg Gross LLP
Practical Tips For Whistleblowers (Relators) and Qui Tam Counsel:
- The Statute of Limitations for Relators – is it too late to bring your case?
- Public Disclosure – does something in the public domain mean that your qui tam lawsuit adds nothing useful for the government and therefore will be dismissed?
- Practical Tips on Anonymity – can you keep your identity as a relator secret forever?
Berger & Montague, P.C.
- Public Disclosure Bar: Overbroad Application By Defendants: Under a so-called “industry wide public disclosure bar,” Defendants in False Claims Act lawsuits are increasingly arguing that the public disclosure bar applies where fraud committed by a competitor in the industry was publicly disclosed even where there are no public disclosures concerning the defendant itself. This weapon is being applied by defendants even when there are warnings by the Government that fraud “could be” present or that an industry “might be” susceptible to fraud. A separate issue is that clever questioning of a relator by defense counsel is used by defendants to make a public disclosure bar argument, but a relator’s statements should be irrelevant if there was no public disclosure in the first place. I will discuss how courts have addressed these arguments and the important ramifications the acceptance of these arguments would have on False Claims Act lawsuits.
- First to File Rule: Not As Clear as It Seems: Relators will often file a new False Claims Act lawsuit without knowing that an existing lawsuit has already been filed but remains under seal. What happens when the first lawsuit has different defendants than the second lawsuit or when the first lawsuit only deals with a local situation against a corporate defendant, while the subsequent lawsuit alleges claims against the same corporate defendant, but sets forth a national scheme? I will discuss the relevant case law on this issue. Another scenario is the following: the earlier lawsuit is dismissed for various reasons (such as the relator’s decision not to move forward after the Government declines to intervene) and the relator who filed the second lawsuit will subsequently file an amended complaint. This presents the question of whether the second relator’s filing of an amended complaint after the first lawsuit is dismissed cures the first to file problem that existed when the second lawsuit was filed. I will discuss the effect that this question has on False Claims Act lawsuits, including potential consequences related to the statute of limitations, and curing a first to file violation when no other suit is pending. I will specifically talk about the Second Circuit’s upcoming consideration of this precise issue.
- Local Coverage Determinations: An Under-Utilized Area of FCA Liability: Medicare is largely operated through Medicare Administrative Contractors (“MACs”), which are private entities retained by CMS to make initial coverage determinations in assigned geographic jurisdictions. MACs are authorized to adopt local coverage determinations (“LCDs”), which are determinations as to whether the MAC consider a particular service to be reasonable and necessary within the MAC’s geographic jurisdiction. Of course, Medicare only covers reasonable and necessary services, and thus, reimbursement claims for services that violate an LCD are attempt to obtain reimbursement for uncovered services. Courts are increasingly recognizing that LCD violations can serve as the basis for FCA liability, but relatively few FCA cases present this theory of liability. I will discuss the opportunity for growth in this area.
- Medicare Advantage FCA Cases: The Latest Developments: The Government recently intervened in two massive and groundbreaking FCA lawsuits involving alleged Medicare Advantage fraud. I will discuss the latest developments in these two lawsuits, in addition to generally speaking about the opportunities for FCA actions premised on Medicare Advantage fraud. Given the continuing growth of Medicare Advantage, this area of fraud will likely be the subject of a substantial number of FCA lawsuits
Who Should Attend:
- Attorneys General
- False Claims Act Lawyers
- In-house Counsel
- Litigation Officers
- Chief Compliance Officers
- Senior Management
- Public and Private Companies
- Other Related and Interested Professionals
Jane H. Yoon is Of Counsel in the Litigation practice of Paul Hastings and is based in the firm’s New York office.
Prior to joining Paul Hastings, Ms. Yoon was an Assistant United States Attorney in the Health Care and Government Fraud Unit in the U.S. Attorney’s Office for the District of New Jersey. Ms. Yoon led numerous investigations into health care fraud offenses, including investigations and prosecutions of fraud against the government and private health insurance plans, illegal kickback schemes, violations of the Federal Food, Drug & Cosmetic Act, False Claims Act cases, and the improper diversion of prescription drugs. She also investigated complex tax fraud offenses and cases involving fraud against various government agencies.
Jane H. Yoon is Of Counsel in the Litigation practice of Paul Hastings and is based in the firm’s New …
Susan R. Hershman is Senior Counsel in Greenberg Gross LLP, resident in the Los Angeles office, and chair of its whistleblower False Claims Act practice. She has 38 years’ experience in complex commercial litigation, including, most recently, 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.
Susan R. Hershman is Senior Counsel in Greenberg Gross LLP, resident in the Los Angeles office, and chair of its …
Ms. Savett is Co-Chair of the Whistleblower, Qui Tam & False Claims Act Group as well as the Securities Fraud Group at Berger & Montague, P.C. 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 that resulted in settlements on behalf of the United States and various states, which exceeded $2 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 2003-2017 and has been recognized by Lawdragon as one of the 500 Leading Lawyers in America. Ms. Savett has achieved the highest possible rating, “AV Preeminent”, from Martindale-Hubbell in both legal ability and ethical standards reflecting the confidential opinions of the Bar and Judiciary.
Ms. Savett is Co-Chair of the Whistleblower, Qui Tam & False Claims Act Group as well as the Securities Fraud …
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Method of Presentation:
Experience in civil laws
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
Areas of Professional Practice
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About Paul Hastings LLP
Paul Hastings provides innovative legal solutions to many of the world’s top financial institutions and Fortune 500 companies in markets across Asia, Europe, Latin America, and the United States.
We offer a complete portfolio of services to support our clients’ complex, often mission-critical needs—from structuring first-of-their-kind transactions to resolving complicated disputes to providing the savvy legal counsel that keeps business moving forward.
Since the firm’s founding in 1951, Paul Hastings has grown steadily and strategically along with our clients and the markets we serve. We established successful practices in key U.S. and European cities, creating a broad network of professionals to support our clients’ ambitions. In addition, we were one of the first U.S. law firms to establish a presence in Asia, and today we continue to be a leader in the region. Over the past decade, we have significantly expanded our global network of lawyers to assist our clients in financial centers around the world, including the emerging markets of Latin America.
Today we serve our clients’ local and international business needs from offices in Atlanta, Beijing, Brussels, Chicago, Frankfurt, Hong Kong, Houston, London, Los Angeles, Milan, New York, Orange County, Palo Alto, Paris, San Diego, San Francisco, São Paulo, Seoul, Shanghai, Tokyo, and Washington, D.C.
Drawing on the firm’s dynamic, collaborative, and entrepreneurial culture, our lawyers work across practices, offices, and borders to provide innovative, seamless legal counsel—where and when our clients need us.
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 Berger & Montague, P.C.
Berger & Montague is a full-spectrum class action and complex civil litigation firm, with nationally known attorneys who are 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 qui tam/whistleblower, antitrust, securities, mass torts, civil and human rights, 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 12 out of the last 14 years (2003-05, 2007-13, 2015-16) for its “Hot List” of top plaintiffs’ oriented litigation firms in the United States. In several of those years, cases led by Sherrie Savett have been featured. The firm has also achieved the highest possible rating by its peers and opponents as reported in Martindale-Hubbell.