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Unsealed Qui Tams Show That Government Declination is Not Always the End

Mintz Levin's most recent Qui Tam Update authored by our Health Care Enforcement Defense Practice provides focused analysis of four health care-related qui tam cases in which the government declined to intervene, including one that may be accepted for argument in front of the United States Supreme Court, and discusses the overall trends in government health care fraud enforcement revealed by a review of 32 other recently unsealed qui tam cases.

The four featured cases are:

  • United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc. et al., Docket No. 12-1349 (U.S. 2013) regarding impermissible off-label sales and marketing practices resulting in false claims submitted by a pharmaceutical company;
  • United States ex rel. Fox Rx, Inc. v. Walgreen Company, No. 1:12-cv-07382 (S.D.N.Y.) regarding false claims allegedly submitted to the Medicare Part D program;
  • United States ex rel. Dolan v. Arlington Rehabilitation & Living Center et al., No. 1:10-cv-00368 (N.D. Ill.) regarding false claims submitted by skilled nursing, rehabilitation facilities, and a contract therapy provider; and
  • United States ex rel. Beaujon v. Plaza Health Network, No. 1:12-cv-20951 (S.D. Fla.) regarding a large-scale false claims scheme involving kickbacks paid by skilled nursing facilities to physicians.

The petition for certiorari in the Takeda case attempts to engage the Supreme Court in resolving a circuit split regarding the "pleading with particularity" requirement in Rule 9(b) applicable to cases that allege that the defendants committed fraud.  Rule 9(b) serves an important “gatekeeping” function intended to ensure that only viable claims are permitted to reach the discovery phase of litigation. As such, a Supreme Court decision resolving the debate on whether a pleading with particularity requires claims-specific information about a defendant’s purportedly illegal conduct or not would have significant consequences for qui tam cases in the pipeline.

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