EASTERN DISTRICT OF PENNSYLVANIA REJECTS GOVERNMENT’S USE OF “UNFETTERED DISCRETION” TO DISMISS QUI TAM ACTIONS Recently, Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania said the government cannot simply exercise “unfettered discretion” to dismiss a qui tam action. See United States v. EMD Serono, Inc., CV 16-5594, 2019 WL 1468934 (E.D. Pa. Apr. 3, 2019). As a matter of first impression in the Third Circuit, the Eastern…

New York State Department of Financial Services Issues Guidance on Whistleblowing Programs On January 7, 2019, the New York State Department of Financial Services (the “Department”) published Guidance on Whistleblowing Programs (the “Guidance”). The Guidance defines whistleblowing as “the reporting of information or concerns, by one or more individuals or entities, that are reasonably believed by such individual(s) or entity(s) to constitute illegality, fraud, unfair or unethical conduct, mismanagement, abuse of power, unsafe or dangerous…

New Jersey Superior Court Says Doctor Is Entitled To His Share Of GSK Global Settlement On October 29, 2018, a three-judge panel in New Jersey’s Superior Court held the lower court improperly expanded a confidentiality provision in a deal among four relators. The court held that the plaintiff, Joseph Piacentile, had not breached the confidentiality provision in the agreement, entitling him to his share of a global settlement between the United States government and GlaxoSmithKline…

Supreme Court Grants Certiorari On False Claims Act Limitations Period After Eleventh Circuit Deepened Circuit Split The U.S. Supreme Court recently granted cert to resolve a circuit split deepened by the Eleventh Circuit’s holding that the statute of limitations period for False Claims Act (FCA) suits runs from the date the government first learns of the alleged violations, whether or not the government intervenes. See United States of America ex rel. Billy Joe Hunt v. …

Eleventh Circuit Holds Criminal Forfeiture Statutes Bar Qui Tam Relators From Intervening in Criminal Forfeiture Proceedings Under the “alternate remedy” provision of the False Claims Act (FCA), rather than intervene in a qui tam action, the government may elect to pursue claims “through any alternate remedy” available to determine a civil penalty. 31 U.S.C. § 3730(c)(5). The provision gives qui tam relators the same rights in the alternate proceeding they would have had if the action continued…

Third Circuit Says Public Disclosure Bar Does Not Stop FCA Suit Where Claim Was Dependent on Combination of Public and Non-Public Information On September 4, 2018, the Third Circuit revived a False Claims Act (FCA) suit against PharMerica Corporation that the District Court had dismissed based on the FCA’s public disclosure bar. The public disclosure bar provides that a “court shall dismiss an action or claim under this section …. if substantially the same allegations…

Sixth and Tenth Circuits Rule that Medical Statements Are Capable of Falsehood Under the FCA Two recent False Claims Act (FCA) decisions – United States v. Paulus, 894 F.3d 267 (6th Cir. 2018) and United States ex rel. Polukoff v. St. Mark’s Hospital, 895 F.3d 730 (10th Cir. 2018) – establish that an FCA claim can be based on a false exercise of medical judgment. In other words, opinions, medical judgments, and conclusions…