Kevin is an accomplished litigator with deep experience defending clients in class action and health care related litigation. Kevin co-chairs the firm's Class Action Practice, and ably represents clients in a wide variety of non-securities class claims, including consumer, privacy, contract, antitrust, unfair trade practice, tort, and employment class actions.
A significant focus of his practice is representing health care-related companies – including pharmacies, PBMs, hospitals, clinical laboratories, diagnostic imaging providers, equipment manufacturers, pharmaceutical companies, and managed care organizations – in class action, contract, regulatory and False Claims Act lawsuits. In addition to health care clients, companies in diverse industries — including financial services, manufacturing, insurance, real estate, and retail — seek Kevin’s assistance on class action and complex litigation.
Kevin's extensive trial experience includes civil bench trials and jury trials in federal and state courts, as well as arbitrations before American Arbitration Association panels. He has appeared in state and federal courts in Alabama, California, Connecticut, Delaware, Florida, Indiana, Illinois, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, and Texas.
Kevin has spoken on national panels concerning class action and privacy litigation, and has written extensively on class actions, privacy litigation, fraud and abuse litigation, and unfair trade practice litigation.
Kevin is an accomplished litigator with deep experience defending clients in class action and health care related litigation. Kevin co-chairs the firm's Class Action Practice, and ably represents clients in a wide variety of non-securities class claims, including consumer, privacy, contract, antitrust, unfair trade practice, tort, and employment class actions.
Experience
Health Care and Life Sciences
- Represent regional emergency hospital group in class action alleging improper and/or excessive billing for in-house clinical laboratory services.
- Represented large medical supply company in connection with a whistleblower action alleging that the resolution of certain rebate disputes with a managed care company resulted in illegal kickbacks and violation of the federal False Claims Act.
- Defended pharmaceutical company against class action alleging that unsolicited faxes inviting health care providers to an educational seminar violated the TCPA.
- Represented large regional health system in connection with an action seeking entry of a consent judgment to resolve state and federal antitrust claims and permit acquisitions of two community hospital systems.
- Defended large national clinical laboratory against claims that its agreements with large managed care companies resulted in purported illegal kickbacks, giving rise to violations of the False Claims Act. Identified the grounds on which the defendant obtained dismissal, establishing a precedent that was affirmed in the federal Court of Appeals for the Second Circuit.
- Obtained dismissal of a “junk fax” class action brought under the TCPA in connection with informational faxes sent to a health care benefit administrator’s network of providers.
Construction and Real Estate
- Represent former owner and operator of residential apartment complex in class action alleging violations of laws governing handling of security deposits and submetering of water and sewer utilities.
- Represent an owner and operator of residential rental properties in a class action alleging a failure to properly repair, preserve and maintain units located in a subsidized housing project.
- Defended a construction industry labor union against claims that enforcement of subcontracting requirements in its collective bargaining agreements violated Sections 1 and 2 of the Sherman Act. Crafted and argued winning summary judgment motion dismissing plaintiff’s antitrust claims.
Education
- Defended a class action brought on behalf of all students at a school for developmentally disabled boys seeking damages for alleged acts of physical and emotional abuse committed by staff at the school. Obtained dismissal of the claims asserted on behalf of the putative class based on the inability to prove the class claims through evidence common to the class as a whole.
Consumer Goods and Professional Services
- Represent multiple automobile dealership group against class actions alleging that compensation of inside sales employees violated state wage, overtime, and Sunday pay requirements
- Represented national manufacturing trade associations in connection with submission of amicus briefs concerning class certification appeals pending before the U.S. Supreme Court and multiple federal circuit courts of appeal
- Represented national oil change service franchise operator in class action alleging that that the defendants misrepresented oil change intervals recommended for customers’ cars. Obtained favorable individual settlement in exchange for dismissal of class claims
- Obtained voluntary dismissal of class action brought against a community bank alleging fraudulent and deceptive marketing practices in connection with the marketing of interest-bearing checking accounts.
- Defended large private equity firms in a class action alleging that defendants engaged in bid rigging and market allocation in connection with large-cap leveraged buyout transactions.
- Defended national retailer against class action alleging violation of statute prohibiting collection of zip codes in connection with credit card transactions. Obtained individual settlement and voluntary dismissal of class claims.
viewpoints
Challenge to False Claims Act Qui Tam Provisions Fails in an Initial Attempt to Revive Long-Dormant Arguments as to Constitutionality Under Article II
December 7, 2023 | Blog | By Kevin McGinty, Keshav Ahuja
This July, we detailed the Supreme Court’s surprising revival in United States ex rel. Polansky v. Exec. Health Resources, No. 21-1052 (S. Ct. June. 16, 2023), of the question of whether the qui tam provisions of the False Claims Act (“FCA”), see 31 U.S.C. § 3730(b)(1), violate the Executive Branch’s exclusive grant of authority under Article II of the United States Constitution. In Polansky, a lengthy dissent by Justice Thomas questioned whether the False Claims Act qui tam provisions violated the Appointments Clause and Take Care Clause of Article II of the United States Constitution, arguments that had been endorsed by the Department of Justice (“DOJ”) in the 1989, though ultimately repudiated by DOJ just seven years later. A concurrence by Justice Kavanagh, joined by Justice Barrett, stated that “the Court should consider the competing arguments on the Article II issue in an appropriate case.” Shortly after Polansky was decided, a defendant in a declined qui tam case pending in the United States District Court for the Northern District of Alabama accepted Justice Kavanagh’s invitation, and moved to dismiss on Article II grounds. In a decision entered in November, the District Court rejected that challenge.
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Blowing the Whistle on the False Claims Act Qui Tam Provisions: Dissent and Concurrence in Polansky Invite Constitutional Challenge to the Predominant Source of FCA Litigation
July 17, 2023 | Blog | By Kevin McGinty, Keshav Ahuja
Do the qui tam provisions of the False Claims Act (FCA), see 31 U.S.C. § 3730(b)(1), violate the Executive Branch’s exclusive grant of authority under Article II of the United States Constitution? This long-dormant question has been revived in a surprising context. In its recent decision in United States ex rel. Polansky v. Exec. Health Resources, No. 21-1052 (S. Ct. June. 16, 2023), the Supreme Court affirmed the government’s authority to intervene to dismiss a whistleblower action, even after initially declining to intervene in the case. Knowledgeable FCA practitioners expected this result. Less expected was Justice Thomas’s dissent, which argued that the case should have been remanded to allow the parties to brief and argue whether Article II forbids allowing private citizens to maintain FCA claims on behalf of the government. A concurrence by Justice Kavanagh (joined by Justice Barrett), while rejecting Justice Thomas’s call for a remand, nonetheless stated that “the Court should consider the competing arguments on the Article II issue in an appropriate case.” With three justices expressing interest in this question—and only four justices being required to grant certiorari—health care enforcement defense attorneys should now consider whether to raise the constitutionality of the FCA’s qui tam provisions when relators move forward to litigate cases that the government declines to pursue.
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Illinois Supreme Court’s Latest BIPA Ruling Increases Risk and Uncertainty as to the Scope of Damages Available Under the Statute
February 28, 2023 | Blog | By Trust D. Kupupika, Kevin McGinty
EnforceMintz: False Claims Act Statistical Year in Review — A Study in Contrasts
February 27, 2023 | Article | By Kevin McGinty
Mintz's Health Care Enforcement group analyzes trends in False Claims Act (FCA) investigations and lawsuits using data compiled its Qui Tam Database, the Department of Justice's (DOJ) annual report of FCA statistics, and the DOJ’s discussion of FCA enforcement trends.
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EnforceMintz — 2022 Teed Up Two False Claims Act Issues That the Supreme Court Is Poised to Answer in 2023
February 9, 2023 | Blog | By Samantha Kingsbury, Kevin McGinty
EnforceMintz Newsletter — Health Care Enforcement Year In Review & 2023 Outlook
February 9, 2023 | Article | By Karen Lovitch, Brian Dunphy, Grady Campion, Kathryn Edgerton, Cory S. Flashner, Samantha Kingsbury, Kevin McGinty
The vast majority of False Claims Act recoveries in fiscal year 2022 came from health care–related cases, and new case filings remained high, despite an ongoing decline in health care FCA case volume. Mintz’s Health Care Enforcement Defense team explores FCA litigation trends using annual DOJ statistics and activity tracked in our database of health care whistleblower cases.
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Supreme Court Justices Agree to Hear Second FCA Issue This Term
January 19, 2023 | Blog | By Samantha Kingsbury, Kevin McGinty
As many of our readers are likely aware, last week the Supreme Court agreed to hear a second False Claims Act (FCA) issue this term. Having previously accepted and heard argument on a case concerning the government’s authority to dismiss an FCA whistleblower case after declining to intervene, the Court has now granted certiorari to hear two cases addressing what constitutes a “knowing” violation of the FCA. Hanging in the balance is the fate of two lower court decisions that endorsed a powerful defense to FCA liability.
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Eighth Circuit Adopts Stricter But-For Causation Standard for False Claims Act Claims based on Anti-Kickback Violations
August 18, 2022 | Blog | By Kevin McGinty, Rachel Yount
In a significant win for False Claims Act (FCA) defendants, the Eighth Circuit recently reversed a district court decision that defendants violated the FCA premised on violations of the Anti-Kickback Statute (AKS). The Eighth Circuit adopted a stricter but-for causation standard for FCA claims based on AKS violations, holding that, in order to prevail on these claims, the government must prove that FCA defendants would not have submitted claims for particular items or services to Medicare or Medicaid absent the illegal kickbacks.
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Webinar Recording: Health Care Enforcement Year in Review & 2022 Outlook
February 16, 2022 | Webinar | By Grady Campion, Randy Jones, Samantha Kingsbury, Karen Lovitch, Kevin McGinty
In our annual webinar, Mintz’s Health Care Enforcement Defense team reviewed the key health care fraud enforcement developments and trends from 2021, assessed their likely impact in 2022, and provided recommendations to avoid government scrutiny.
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Health Care Enforcement Year in Review & 2022 Outlook
February 11, 2022 |
In our annual Health Care Enforcement Year in Review & Outlook report, we examine the data and explore health care enforcement trends and likely targets of government scrutiny for 2022 and beyond.
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News & Press
Twenty-Five Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 21, 2023
BOSTON – Twenty-five Mintz attorneys have been named to Boston Magazine’s Top Lawyers list.
Twenty-Eight Mintz Attorneys Named To Boston Magazine’s Top Lawyers List
November 22, 2022
In its second annual edition, 28 Mintz attorneys were named to Boston Magazine’s Top Lawyers list.
2017 Health Care Enforcement Review: Trends In FCA Cases
January 16, 2018
Kevin McGinty is a Member in the Mintz Boston Office authored an article that was the first part of four in a series on health care enforcement trends in 2017. The series was published by Law360.
Spokeo Ruling Deals Blow To Cos. But May Have Silver Lining
August 15, 2017
Boston Litigation Member Kevin McGinty was quoted in a Law360 article on how the Ninth Circuit’s decision in a case involving an allegedly inaccurate consumer report may seem beneficial to the plaintiffs at the outset but may leave companies with a stronger defense further down the line.
Justices Level Class Action Playing Field In Xbox Ruling
June 12, 2017
Boston Litigation Member Kevin McGinty was quoted in a Law360 article on the U.S. Supreme Court’s decision that a plaintiff claiming that the Xbox 360 unit was defective could not appeal a class certification order on the basis that the voluntary dismissal of his claims counted as a final decision.
Target Data Breach Deal's Hiccup Puts Focus On Standing
February 2, 2017
Mintz Member Kevin McGinty is quoted in this feature article focusing on Target’s $10 million class action settlement, which allowed Target to avoid multiple data breach claims, as well as the future of the terms of privacy and data security pacts.
Health Care Enforcement Review And 2017 Outlook: Part 4
January 19, 2017
This is the fourth and final installment of a series from Mintz’s Health Law team recapping key government policies, regulations and enforcement actions from 2016 and discussing their potential impacts on 2017.
Spokeo Split: How High Court's Ruling Is Being Interpreted
December 7, 2016
Litigation Member Kevin McGinty was quoted in a Law360 article on the impact of the U.S. Supreme Court’s decision in the Spokeo v. Robins case, noting that since SCOTUS’ landmark ruling there has been confusion among lower courts which could lead to another high court showdown.
Eighty-Four Mintz Attorneys Named 2016 Massachusetts Super Lawyers and Rising Stars
October 18, 2016
Fifty-three Mintz attorneys have been named Massachusetts Super Lawyers for 2016 and thirty-one have been named Massachusetts Rising Stars. The findings will be published in the November 2016 issue of Boston Magazine and in a stand-alone magazine, New England Super Lawyers.
Home Depot Appeal To Test Banks' Data Breach Footing
July 7, 2016
Mintz Litigation Member Kevin McGinty is quoted in this Law360 article on Home Depot’s efforts to seek permission to bring several questions raised by a judge’s refusal to toss data breach claims asserted by financial institutions to the Eleventh Circuit.
Mintz Litigation Member Kevin McGinty is quoted in this Business Insurance piece on the U.S. Supreme Court’s ruling against Tyson Foods Inc. in a class action meant to determine whether workers should be paid overtime for the time spent putting on and taking off their work clothes.
Supreme Court Decision 'Huge David v. Goliath Victory'
March 23, 2016
Kevin McGinty, a Member of Mintz’s Litigation Practice, is quoted in a Society for Human Resource Management article covering the U.S. Supreme Court’s ruling validating the use of representative and statistical evidence in class actions.
Attorneys React To High Court's Tyson Class Action Ruling
March 23, 2016
Mintz Member Kevin McGinty is quoted in this Law360 article on the U.S. Supreme Court’s upholding of the previous judgment against Tyson Foods Inc. in a class action lawsuit brought by workers fighting for overtime pay for time spent putting on and taking off their protective work uniforms.
Tyson Ruling Tees up More Class Action Evidence Fights
March 23, 2016
Mintz Litigation member Kevin McGinty is quoted in this Law360 article on the U.S. Supreme Court’s ruling that “Tyson Foods workers could use statistical sampling to support class certification in a don-doff dispute.”
Justices Hand Class Action Plaintiffs Second Win This Term
March 23, 2016
This feature story notes that for the second time this term, the U.S. Supreme Court has handed class action plaintiffs significant wins. The article recaps the Justices’ decision in Tyson Foods v. Bouaphakeo. Mintz Litigation Member Kevin McGinty provides commentary.
5 Privacy Litigation Developments You May Have Missed
January 26, 2016
This Law360 feature article discusses some of the major data breach cases that may have significant impact but may have been overshadowed by cases like that of the Target and Wyndham suits. Mintz Litigation Member Kevin McGinty provides commentary.
Report Shows 'Explosion' in Health Care Whistleblower Suits
January 18, 2016
This article focuses on the findings of a Department of Justice report which note an increase in False Claims Act litigation throughout the recent year. Mintz Member Kevin McGinty is quoted providing commentary.
Analysis: Unusual Ruling in Massachusetts Breach Case
January 7, 2016
Kevin McGinty, a Member of Mintz’s Litigation Practice, is featured in this Data Breach Today coverage discussing a Massachusetts judge's decision to allow a class-action lawsuit to proceed.
Kevin McGinty, a Mintz Member, authored this Life Science Compliance Update article examining the Department of Justice’s statistics on False Claims Act filings which have seen significant growth in recent years.
Events & Speaking
Kevin is an accomplished litigator with deep experience defending clients in class action and health care related litigation. Kevin co-chairs the firm's Class Action Practice, and ably represents clients in a wide variety of non-securities class claims, including consumer, privacy, contract, antitrust, unfair trade practice, tort, and employment class actions.
Recognition & Awards
Massachusetts Super Lawyers: Class Action (2004 – 2021)
Boston Magazine Top Lawyers – Class Action (2022-2023)
Martindale-Hubbell AV Preeminent
Recent Insights
BOSTON – Twenty-five Mintz attorneys have been named to Boston Magazine’s Top Lawyers list.
