Proskauer Whistleblower Defense

Category Archives: False Claims Act

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Hospital Sues Whistleblower for Failing to Report Information And Choosing Instead to Use As Basis for Claim

By Steven J. Pearlman and Pinchos Goldberg on Posted in False Claims Act
In an unusual and eye-catching case, a hospital facing a whistleblower lawsuit from a former senior executive under the False Claims Act (“FCA”) has brought suit against that individual, alleging he breached his fiduciary duty by failing to report the unlawful conduct internally and instead using that information as the basis for a whistleblower claim.  … Continue Reading

LA Jury Awards Whistleblower $1.5 Million

By Steven J. Pearlman, Kate Gold and Pinchos Goldberg on Posted in False Claims Act, Verdicts
On February 28, 2019, a Los Angeles jury issued a verdict of $1.5 million in damages to a former employee who alleged his employer retaliated against him for reporting misconduct in violation of the False Claims Act (“FCA”), 31 U.S.C. § 3730(h), the Defense Contractor Whistleblower Protection Act (“DCWPA”), 10 U.S.C. § 2409, and California’s … Continue Reading

First Cir. Sets Pleading Standard For FCA Whistleblower Retaliation Claims

By Steven J. Pearlman and Edward Young on Posted in False Claims Act
On January 15, 2019, the First Circuit ruled that a plaintiff adequately alleges protected activity under the FCA whistleblower protection provision where he asserts that he reported concerns about his employer’s conduct that could reasonably lead to a viable FCA action.  Guilfoile v. Shields, Sr., No. 17-1610. Background Plaintiff, a former executive of pharmacy chain … Continue Reading

Sanctions Award Strengthens Fight to Protect Confidential Company Records

By Connie Bertram and Amy Blackwood on Posted in False Claims Act
On October 18, 2017, a federal district judge in Alaska ordered a former employee to pay nearly $170,000 of his ex-employer’s legal fees as sanction for removing nine attorney-client privileged documents prior to his termination. The ruling was based on a decision this summer that the former employee willfully and deliberately disobeyed established norms of … Continue Reading

Third Circuit Revives In-House Attorney’s Whistleblower Claim

By Steven J. Pearlman, Harris Mufson and McKenzie A. Wilson on Posted in Dodd Frank, False Claims Act, SEC, SOX Whistleblower Decisions, State-Specific Whistleblower Claims
On April 12, 2017, the Third Circuit partially revived a former in-house attorney’s whistleblower retaliation lawsuit against his previous employer.  Danon v. Vanguard Group, Inc., No. 16-cv-2881. Plaintiff, a former in-house tax lawyer, previously raised retaliation claims against the Company in New York State Court under the New York False Claims Act, alleging he was … Continue Reading

Seventh Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments

By Connie Bertram and Daniel Davis on Posted in False Claims Act
The Seventh Circuit recently issued a decision interpreting the anti-retaliation provisions of the False Claims Act (FCA).  The decision provides important clarifications about how courts may interpret recent amendments to this provision.  Like a recent decision by the Fourth Circuit, the Seventh Circuit finds that courts may inquire whether the employee’s underlying complaint of FCA … Continue Reading

Fourth Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments

By Connie Bertram and Daniel Davis on Posted in False Claims Act
The Fourth Circuit recently issued a decision interpreting the anti-retaliation provision of the False Claims Act (FCA).  The decision provides important clarification about how courts may interpret 2009 and 2010 amendments to the anti-retaliation provision.  Specifically, it finds that courts may inquire whether the employee’s underlying complaint of FCA fraud is objectively and subjectively reasonable.… Continue Reading

In 10-1 Verdict, Jury Finds No FCA Violation by Abbott Laboratories

By Harris Mufson and Noa Baddish on Posted in False Claims Act
On April 7, 2016, after just three hours of deliberations following a three-week trial, a federal jury dismissed False Claims Act (“FCA”) claims against Abbott Laboratories brought by a whistleblowing former employee.  The jury concluded that the company did not improperly market bile duct stents for off-label uses in vascular procedures.… Continue Reading

Tennessee District Court Limits Scope of Dodd-Frank Whistleblower Claim

By Lloyd B. Chinn, Harris Mufson and Natalie Phillips on Posted in Dodd Frank, False Claims Act, SOX Whistleblower Decisions
The Eastern District of Tennessee recently dismissed whistleblower claims, finding that the Plaintiff was not entitled to protection under Sarbanes-Oxley, Dodd-Frank, or the False Claims Act (“FCA”).  Verble v. Morgan Stanley Smith Barney LLC et al., 3:15-cv-00074 (E.D. Tenn. Dec. 8, 2015).  The court’s decision illustrates the sharp divide amongst courts regarding the scope of … Continue Reading

DC Circuit: Internal Investigation Documents Are Protected from Disclosure in FCA Case

By Connie Bertram and Amanda Wiley on Posted in False Claims Act
Reversing a lower court decision, the D.C. Circuit recently concluded – for a second time – that certain internal audit documents are protected from disclosure by the attorney-client communication and work production privileges. On August 11, 2015, the D.C. Circuit issued a second writ of mandamus regarding the same group of documents, internal reports which the … Continue Reading

E.D.N.Y Denies Motion For Summary Judgment In FCA Retaliation Case Based On Finding Of Pretext

By Steven J. Pearlman and Natalie Phillips on Posted in False Claims Act
The U.S. District Court for the Eastern District of New York recently found that two former employees of Eihab Human Services (Company) raised a genuine issue of material fact as to whether they were discharged in retaliation for reporting that an executive director ordered an employee to create fraudulent billing records in violation of the … Continue Reading

Eleventh Circuit Limits Scope of FCA Whistleblower Suit

By Connie Bertram, Guy Brenner and Emilie Adams on Posted in False Claims Act
Late last month, a three-judge panel of the Eleventh Circuit Court of Appeals reinstated portions of a former executive’s False Claims Act (“FCA”) whistleblower action against Health Management Associates Inc. (“HMA”), alleging that the company engaged in an illegal to generate referrals of Medicare and Medicaid patients to its facilitates. In its ruling, the Eleventh … Continue Reading

Sixth Circuit Dismisses Whistleblower’s Claims Made By Job Applicant

By Connie Bertram, Daniel Davis and Emilie Adams on Posted in False Claims Act
This week, the U.S. Court of Appeals for the Sixth Circuit ruled that a job applicant lacks standing to bring whistle-blower claims under the Energy Reorganization Act and the False Claims Act (“FCA”) because those laws’ retaliation provisions apply only to employees.  The Sixth Circuit is the first Court of Appeals to address this issue.… Continue Reading

False Claims Act Does Not Protect An Employee Disclosing His Whistleblower History

By Connie Bertram and Daniel Davis on Posted in False Claims Act
On October 20, the United States District Court for the Southern District of Ohio found that the False Claims Act (“FCA”) did not protect an employee who was fired after revealing his history as a whistleblower and offering to help his new employer prevent overcharges on a government contract.  The court held that the employee … Continue Reading

Proskauer Obtains Dismissal of High-Stakes False Claims Act Suit

By Edward S. Kornreich, Sigal Mandelker and Roger Cohen on Posted in False Claims Act
On August 7, 2014, Judge Castel of the Southern District of New York dismissed a False Claims Act (“FCA”) complaint that was based primarily on allegations that the defendant Hospital improperly focused on referral revenue in its physician compensation decisions. The Court insisted that an FCA complaint must set forth specific facts supporting the allegations regarding the … Continue Reading

Texas Federal Court Dismisses FCA Claims As Insufficiently Pled

By Harris Mufson and Jon Dueltgen on Posted in False Claims Act
In U.S. ex rel. Williams v. McKesson Corp., No. 3:12-CV-0371-B (N.D. Tex. July 9, 2014), a Texas federal court recently dismissed a qui tam whistleblower suit by a former employee of McKesson, a Texas-based entity that provides billing-related services to the health care industry, holding that the former employee failed to establish “the existence of … Continue Reading

Fifth Circuit: FCA Inapplicable to Claims Involving Private Funds Administered by Government-Created Programs

By Connie Bertram and Rachel Fischer on Posted in False Claims Act
In United States of America ex rel Rene Shupe v. Cisco Systems, Inc. and Avnet, Inc., No. 13-40807 (5th Cir. July 7, 2014), the Fifth Circuit reversed a district court’s order denying a motion to dismiss a qui tam whistleblower suit, holding that the False Claims Act does not apply to submissions by telecommunications companies … Continue Reading

DC Circuit Rejects Narrow View Of Attorney-Client Privilege In Internal Company Investigations

By Connie Bertram, Daniel Davis and Michael J. Graham on Posted in False Claims Act
On June 27, 2014, the D.C. Circuit granted Kellogg Brown & Root’s (“KBR’s”) petition for a writ of mandamus and vacated a federal district court order requiring KBR to produce 89 documents related to an internal investigation.  Relying on Upjohn Co. v. United States, 449 U.S. 383 (1981), the D.C. Circuit ruled that the documents … Continue Reading

Third Circuit Adopts Less Demanding FCA Pleading Standard

By Connie Bertram and Daniel Davis on Posted in False Claims Act
Last week, the Third Circuit reversed a New Jersey district court’s decision to dismiss a False Claims Act (FCA) qui tam law suit, holding that the court applied an overly demanding pleading standard to relator Thomas Foglia’s complaint.  The Third Circuit’s decision joins the growing debate that has split the circuits as to whether whistleblowers … Continue Reading

Court Recognizes Limitations on Relator’s Ability to Bring Multiple Suits in U.S. v. Cellco

By Connie Bertram and Andrew Aitchison on Posted in False Claims Act
A federal circuit court decision issued last week recognizes important limitations on a relator’s ability to bring multiple lawsuits against the same contractor or alleging related fraud.  The U.S. Court of Appeals for the District of Columbia Circuit held that allowing multiple suits by the same relator would violate the intent behind the “first-to-file” rule: … Continue Reading

Federal Court Ruling Raises Questions About Privileged Nature Of Certain Internal Investigations

By Connie Bertram, Daniel Davis and Amy Blackwood on Posted in False Claims Act
On March 6, 2014, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations conducted by the Company.  The court held that neither the attorney-client privilege nor the attorney work-product doctrine barred production or … Continue Reading
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