Posts Tagged ‘qui tam’

Higher education roundup

Feds: we’ve had it with qui tam gamesmanship

“The U.S. Department of Justice is asking federal judges around the country to dismiss lawsuits it says are brought by shell companies that misrepresent their true purposes – filing meritless litigation against health care companies…. The DOJ says these plaintiffs were created for the sole purpose of filing suit under the federal False Claims Act and is complaining that it spent hundreds of hours investigating kickback allegations only to find no merit to them…. Among the law firms representing the plaintiffs in the cases is the firm of prominent personal injury lawyer Mark Lanier of Texas.” [P. David Yates, Legal NewsLine/Forbes]

“Significant to DOJ’s analysis was the fact that the qui tam relators used ‘false pretenses’ to obtain information from witnesses. According to the government, the actions all were filed by a ‘professional relator’ entity that sought to develop contacts and inside information under the guise of conducting a research study of the pharmaceutical industry, and offering to pay individuals for information provided in a purported ‘qualitative research study,’ even though the information was ‘actually being collected for use in qui tam complaints filed by [the professional relator] through its pseudonymous limited liability companies.’…it would be awkward for DOJ to sit idly by and allow qui tam cases to proceed, in the government’s name—which is how the qui tam system works—when those cases are purportedly premised on a scheme one district court already described as involving ethical violations and ‘an elaborate series of falsehoods, misrepresentation, and deceptive conduct.'” [Joe Metro and Andy Bernasconi, Drug and Device Law]

And yet more: “Prominent qui tam lawyers are now questioning the nomination of William Barr as attorney general, citing comments he made nearly 30 years ago questioning the constitutionality of private relators under the FCA. Some of the lawyers who signed a recent letter to U.S. Sen. Chuck Grassley criticizing Barr, including Harvard Law School Professor Nancy Gertner, participated in litigation against Celgene that the government declined to join but nevertheless generated $280 million in settlements and more than $30 million in legal fees.” [Daniel Fisher, Legal NewsLine/Forbes]

August 8 roundup

  • North Carolina’s heartbalm law strikes again, as judge orders man who slept with married woman to pay jilted husband $8.8 million [Virginia Bridges, Raleigh News & Observer, more on homewrecker tort]
  • Cornell economist Rick Geddes explains the federal government’s postal monopoly [David Henderson]
  • Trademark swagger: “Chicago Poke Chain Sends C&D To Hawaiian Poke Joint Demanding It Not Be Named ‘Aloha Poke'” [Timothy Geigner, Techdirt] “Shipyard Brewing Loses Its Lawsuit Over Ships and The Word ‘Head'” [same]
  • “Man files lawsuit under False Claims Act against manufacturer of batteries for use in intercontinental ballistic missile launch controls, asks for $30 mil, settles for $1.7 mil. What follows is—in the trial court’s words—a “hellish” dispute over the man’s attorneys’ fees. Third Circuit: We feel you; the order reducing requested fees is affirmed in almost every respect.” [John K. Ross, Short Circuit, on U.S. ex rel. Palmer v. C&D Technologies]
  • Using the law to suppress one’s competition: New York Taxi Workers Alliance cheers City Council’s move to cap Uber and ridesharing [Reuters] It’s totally normal and not at all suspicious that the city council president who wants tougher enforcement against Airbnb is also president of the state’s hotel lobby [Eric Boehm, Reason; Biloxi, Mississippi]
  • For those still keeping score, it’s improper and prejudicial for the head of the nation’s law enforcement apparatus to declaim publicly against a criminal trial in progress, whether or not the defendant happens to be his own campaign manager [David Post, Volokh; April Post and podcast on inapplicable “fruit of the poisonous tree” claim]

April 4 roundup

February 14 roundup

  • “One-Sided Loser Pays Is the Worst of Both Worlds” [Mark Pulliam at his new blog Misrule of Law, and thanks for mention]
  • My first piece for Quillette debunks claims of jump in rate at which gay men are being murdered in U.S.;
  • Welcome news: Department of Justice memo advises DoJ attorneys to seek dismissal of meritless False Claims Act suits [Reuters, Federalist Society teleforum with Brandon Moss, Greg Herbers/WLF, Michael Granston memo]
  • Empirical evidence on factors that lead to approval of low-quality patents [Timothy Lee, ArsTechnica, noting ideas for improving patent review process: (1) eliminate issuance fees, (2) limit re-applications, (3) give senior examiners more time per patent]
  • “Will we see tort reform in the midterms?” [Joseph Cotto interview with me for San Francisco Review of Books, YouTube audio, 33:51]
  • FSMA will drive many smaller farmers/foodmakers out of business, only question is how many [Baylen Linnekin, our earlier]

Judge excoriates DoJ in False Claims Act case

Problems with applying the whistleblower law that has been described as a “cash cow” for the U.S. Department of Justice [C. Ryan Barber, NLJ]:

A federal magistrate judge has struck a key witness and ordered the U.S. Justice Department to pay legal fees to HCR ManorCare Inc., one of the country’s largest providers of skilled nursing facilities, for alleged missteps in a case the government touted in the crackdown on fraud in the health care industry. “I don’t think this case should have ever been brought,” a federal magistrate judge in Virginia said at a recent hearing. “I have looked at this stuff, and I’m appalled, I’m embarrassed, I’m ashamed that the Department of Justice would rely on this kind of nonsense.”

Earlier on qui tam and the False Claims Act here. [& followup, Toledo Blade: feds drop case]

Liability roundup

  • Hoping to blame Pacific Gas & Electric power lines for Northern California fires, lawyers from coast to coast descend on wine country [Paul Payne, Santa Rosa Press-Democrat]
  • Courts should police lawyers’ handling of class actions, including temptation to sweep additional members with doubtful claims into class so as to boost fees [Ilya Shapiro, Trevor Burrus, and Reilly Stephens on Cato certiorari amicus in case of Yang v. Wortman]
  • “Seventh Circuit Curtails RICO Application to Third-Party Payor Off-Label Suits” [Stephen McConnell, D&DL] “Here Is Why The False Claims Act Is An ‘Awkward Vehicle’ In Pharma Cases” [Steven Boranian]
  • Litigation finance moves into car crash business [Denise Johnson, Insurance Journal]
  • Slain NYC sanitation worker’s “frequent advice to Sanitation colleagues about how to save for the future helped persuade the jury that Frosch had a viable career ahead of him in financial planning,” contributing large future earnings component to $41 million award [Stephen Rex Brown, New York Daily News]
  • “Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California” [Cory Andrews, WLF]

Tales of discovery: document request in qui tam case

And speaking of discovery, reader W.C. writes to say:

This is a False Claims Act case. I am not terribly interested in the substance (relators claim that a drug was recommended for off-label use and that Medicaid shouldn’t have paid for it; they complained and were fired).

What is interesting is taxable costs. Fifth Circuit affirmed (finding no abuse of discretion for an award of) $232,809.92.

Money quotes for me: “The district court acknowledged that [Defendant]’s invoices were not detailed but explained that, given nearly three million pages of copies [Defendant] produced for its defense in this case, it would have been impossible for [Defendant] to explain each page’s usefulness.” (emphasis added). The Court also allowed for “costs relating to (1) TIFF image conversion, (2) scanning, (3) formatting electronic documents, and (4) PDF conversion – per [28 U.S.C.] § 1920(4), which allows recovery for ‘exemplification’ and ‘making copies’ of case materials,” and confirmed that the district “allow[s] a prevailing party to recover the costs of complying with an opposing party’s request to reformat electronic documents or scan hard copies of documents” under 28 USDC s 1920.

Lessons: (i) You might want to more narrowly tailor those discovery request; (ii) Defendants had asked for $961,380.52, so maybe the back up the truck strategy was not 100% effective.

October 11 roundup