Latest Articles

On January 25, 2018, the U.S. Department of Justice (DOJ) issued a memorandum limiting the use of agency guidance documents in affirmative civil enforcement (ACE) cases.  Stating that “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulation,” the memorandum strongly discourages DOJ litigators from using noncompliance with agency guidance documents as a basis for suit or as evidentiary proof in ongoing litigation.…
In a January 10, 2018 memo that leaked last week (the “Granston Memo”), the U.S. Department of Justice (DOJ) directs its prosecutors to more seriously consider dismissing meritless False Claims Act (FCA) cases brought by whistleblowers.  We have long argued DOJ dismissal is an underused tool provided by the FCA.  See “Dismissing FCA Cases Over Relators’ Objections,” Law360 (May 7, 2012).  While we expect prosecutors will remain resistant to aggressively dismissing cases, the…
The Escobar and Sanford-Brown Decisions This summer, the United States Supreme Court undertook to resolve the long-running circuit split over the validity and scope of the implied false certification theory of liability under the False Claims Act (“FCA”). The theory treats a payment request to the Government as an implied certification of compliance with relevant statutes, regulations, or contract requirements for obtaining payment, and it renders a failure to disclose a violation as an affirmative…
In an important win for hospice and other health care providers facing claims under the False Claims Act (FCA), a federal court in Alabama gave a summary judgment victory last week to hospice provider Aseracare Inc. Key Takeaway A difference in medical opinion between the Government’s expert physician and the physicians who certified a patient’s terminal illness did not establish the required element of “falsity” under the FCA.…
By now, providers are very familiar with Medicare recovery audit contractors, or RACs – the private companies who have authority to review medical records at a moment’s notice. For every dollar they opine has been improperly billed, the RACs recover a share of the bounty, creating a perverse incentive and an appeal process years behind schedule. So far, the RACs have been limited to a review of Medicare Parts A and B . . .…
The Department of Justice (DOJ) long has required entities seeking credit for cooperating with its investigations to provide what it terms “full and truthful” cooperation. In policies memorialized over time, DOJ has been careful to encourage companies to voluntarily come forward, yet has refrained from identifying exactly what it means to be “cooperative.” DOJ now has provided further guidance.…
After repeated public statements warning companies that might seek to stifle whistleblowers, the U.S. Securities and Exchange Commission (SEC) has brought its first enforcement action relating to language in confidentiality agreements that the SEC believes could impede whistleblowers from reporting potential violations of the securities laws. As discussed in more detail below, this action suggests that companies should re-examine their employment policies, severance agreements, codes of conduct, and any other practices utilizing language regarding confidentiality.…
In a conversation with Lee Pacchia from Mimesis Law, Foley & Lardner Partner, Lisa Noller, discusses the Government’s approach to health care fraud prosecutions and what companies can expect in 2015. Since 2007, the Department of Justice (DOJ) has increased its affirmative civil and criminal enforcement priorities. Rather than relying on whistleblowers to come forward and make a complaint, the DOJ now actively reviews its claims and other statistical data, using fiscal intermediaries to analyze…
A recent federal court decision raises concerns about the ability of companies to maintain privilege over materials generated in connection with internal investigations. The case, United States ex rel. Barko v. Halliburton Company et al., No. 1:05-CV-1276 (D.D.C. Mar. 6, 2014), involved allegations by a qui tam relator that his employer committed abuses in connection with government contracts for military support in Iraq. The relator sought to compel documents related to investigations into the same…
The Federal Deposit Insurance Corporation (“FDIC”) this week announced it is working with the FBI to investigate crime in federally insured financial institutions and to recover more money from persons formerly affiliated with such banks. The FDIC has long held the power to investigate member-insured institutions, as well as individuals, defined by statute as “institution-affiliated parties.” However, the FDIC has laid low for a decade, making some forget that it enjoys a lower standard of…