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As a lawyer who regularly defends qui tam suits brought against government contractors under the False Claims Act (FCA), a recent decision from the U.S. Court of Federal Claims in The Tolliver Grp. Inc. v. United States, Fed. Cl., No. 17-1763C (J. Lettow 10/26/18) prompted me to remind federal government contractors defending civil qui tam lawsuits under the FCA, that the majority of their legal fees spent successfully defending a relator’s whistleblower suit may be…
Michael Granston, the Director of the Commercial Litigation Branch within the United States Department of Justice’s Fraud Section, recently issued an internal memorandum affirming his prior statements that the Department of Justice (DOJ) should consider seeking dismissal of meritless False Claims Act (FCA) suits brought by relators in qui tam cases. Under 31 U.S.C. § 3730(c)(2)(A), the government can dismiss a qui tam action “notwithstanding the objections of the person initiating the action” by filing…
In efforts to bring the VA Acquisition Regulation (VAAR) “in line” with Federal Acquisition Regulation (FAR), the US Department of Veterans Affairs (“VA”) has proposed amendments to its acquisition regulation.  The VA proposes to eliminate any procedural guidance from the VAAR that is internal to the VA, to incorporate new regulations and policies, and to revise or remove any policy that has been superseded by changes in the FAR. The Agency’s proposed rule and procurement…
Submitting your company’s bid proposal close to the deadline can be risky and have grave consequences. The government has repeatedly rejected proposals submitted before, but received after, the deadline because of technical glitches.  In submitting a proposal for a government contract, the onus is on the contractor to ensure that its proposal is received prior to the exact time specified for receipt of proposals.  The deadlines set forth in the solicitation are strictly enforced unless:…
The Department of Veterans Affairs recently announced that it will now require all covered drugs under the Veterans Health Care Act to be offered on Federal Supply Schedule contracts, regardless of whether they meet the “country of origin” standards of the Trade Agreements Act. This decision represents a major reversal in policy for the VA.  The policy is being implemented immediately, requiring action for many companies as soon as April 26, 2016.  For the first…
In a significant policy reversal that will affect many pharmaceutical manufacturers and suppliers – and that will require immediate action by many pharmaceutical manufacturers – the Department of Veterans Affairs is now requiring that all covered drugs under the Veterans Health Care Act be offered on Federal Supply Schedule (FSS) contracts, regardless of whether they meet the “country of origin” standards of the Trade Agreements Act (TAA). Under the TAA, government agencies, including the VA,…
On January 20, 2016, the Supreme Court clarified the scope of “Yearsley immunity” – a form of derivative sovereign immunity available to qualifying government contractors – in its decision in Campbell-Ewald Co. v. Gomez. Until two weeks ago, many courts had misconstrued the Supreme Court’s 1940 decision, Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 60 S. Ct. 413 (1940), and held its immunity protected only those government contractors sued in connection with their…
This post was also written by James C. Martin. In a decision that has significant repercussions both for the pharmaceutical and health care industries and False Claims Act jurisprudence more broadly, the U.S. Supreme Court denied review of a groundbreaking Fourth Circuit decision affirming the dismissal of a novel False Claims Act suit against Reed Smith client Omnicare, Inc. In its February 2014 decision, the Fourth Circuit rejected the qui tam relator’s claim that…
This post was also written by Joseph W. Metro. We want to alert our readers to a recent decision out of the U.S. District Court for the District of Columbia. U.S. District Court for the District of Columbia holds documents related to internal investigations of possible violations of corporate code of conduct not protected from disclosure under either attorney-client privilege or attorney work product doctrine  Ruling serves as timely reminder for companies in a…
This post was also written by James C. Martin. Recently the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s dismissal of the relator’s False Claims Act (FCA) complaint against Omnicare in United States ex rel. Rostholder v. Omnicare, Inc., a decision having significant repercussions for the pharmaceutical industry and broader FCA jurisprudence. The Fourth Circuit rejected plaintiff’s claim that Omnicare violated the FCA when it sought reimbursement for drugs that it…