Recent Settlements May Indicate Increased Government Focus on the Stark Law’s “Group Practice” Requirements and Exception for “In-Office Ancillary Services”
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Crowell & Moring Launches Whistleblower Watch Blog
Earlier this year, Crowell & Moring assembled an interdisciplinary team of attorneys to begin reporting on legal developments regarding whistleblowers. The result is the Whistleblower Watch blog (whistleblowerwatch.com), on which more than 15 contributing authors post about everything from the False Claims Act to Sarbanes-Oxley to the SEC. They monitor legislation and case law at the federal and state levels, and keep tabs on agency actions that affect whistleblowers and their employers.
We…
Solicitor General Addresses Standard for Rule 9(b) in FCA Cases, Asks Supreme Court Not to
The government has reiterated in no uncertain terms its proposed standard for particularity under the FCA: “a qui tam complaint satisfie[s] Rule 9(b) if it contains detailed allegations supporting a plausible inference that false claims were submitted to the government, even if the complaint does not identify specific requests for payment.” Brief for United States as Amicus Curiae, United States ex rel. Nathan v. Takeda Pharmaceuticals, Petition for Certiorari No. 12-1349 (U.S. 2013). While opining…
The Growing Split Over Whether the FCA’s Public Disclosure Bar is Still a Jurisdictional Limitation
In March, we published an article entitled “New Questions Regarding The Jurisdictionality Of The FCA’s Public Disclosure Bar: Potential Hurdles And Increased Costs In Defending Against Parasitic Qui Tam Actions,” The Government Contractor, Vol. 55, No. 12 (Mar. 27, 2013). We explored whether, given the 2010 amendments to the civil False Claims Act (FCA) under the Patient Protection and Affordable Care Act (PPACA), the public disclosure bar1 still implicated a federal court’s…
What Subcontractors, Small Businesses and Suppliers Can Expect Under DOD’s Proposed Counterfeit Parts Rule
The Department of Defense has recently issued a proposed rule to combat the counterfeit electronic parts, summarized here. Trying to preempt justifiable concerns on the part of small businesses at all tiers of the government contracts supply chain, DOD indicated that “the impact should be negligible as long as the small entity is not supplying counterfeit parts to the prime contractor.” That really understates the nature and scope of the impact to subcontractors and…
Search Warrants and the ECPA – Why the Government May Be Reading Your E-Mails Without Your Knowledge
When journalist James Rosen became a suspect in a federal investigation into the leak of classified information, his personal emails were searched and seized by the government. He had no knowledge of this, however, because the warrant applications were filed under seal and the court permitted the government to delay providing notice to him. Although the government argued they had no obligation to notify Mr. Rosen that his email account had been seized, Magistrate Judge…
Crowell & Moring Secures Two-Part Victory in Major False Claims Act Case
Crowell & Moring recently achieved two substantial victories for its client, Academi Training Center LLC (“ACADEMI”) in a qui tam False Claims Act case in the Eastern District of Virginia . The qui tam relators accused ACADEMI of billing for personnel who did not serve in the labor categories in which they were billed and for personnel who had not been qualified on belt-fed weapons as required under its contract. They also alleged that ACADEMI…
Conflicting Court Decisions Highlight Difficulty of Prosecuting Foreign Corporations For Economic Espionage and Trade Secrets Theft
The Obama administration has made the protection of U.S. intellectual property a priority. But achieving that goal is rife with challenges, including the practical barriers to criminal prosecution of foreign corporations for economic espionage and trade secrets theft. Among those barriers is Rule 4 of the Federal Rules of Criminal Procedure, which specifies how jurisdiction over a foreign corporate defendant may be achieved through service of process. Courts are only now beginning to struggle with the intersection of…
FCA Complaint “Dies Hard” in the Eastern District of Virginia
A False Claims Act (“FCA”) complaint filed by John McLain (not to be confused with the main character of the Die Hard series sharing the same name) was recently dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and failure to plead fraud with particularity under Rule 9(b). See United States ex rel. McLain v. KBR, Inc., No. 1:08-cv-499 (E.D. Va. Feb. 27, 2013).
The decision provides us an opportunity…
Ninth Circuit Reinstates FCA Complaint Even Though It Fails To Allege Actual False Claims
Complaints alleging violations of the False Claims Act (“FCA”) must satisfy Federal Rule of Civil Procedure 9(b), which requires the government or qui tam relator to “state with particularity the circumstances constituting fraud.” In order to ferret out fishing expeditions, many courts have held that Rule 9(b) requires plaintiffs to allege the who, what, when, where and how of the alleged fraud. See, e.g., United States ex rel. Wilson v. Kellogg Brown & Root, 525…