Tag Archives: False Claims Act (FCA)

DOJ Advocates for Dismissal of False Claims Act Case, Urges SCOTUS Not to Clarify Escobar Materiality Standard

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In an unusual amicus brief, DOJ urged the Supreme Court of the United States not to grant certiorari in Gilead Sciences, Inc. v. United States ex rel. Campie because “continued prosecution of the suit is not in the public interest.”  DOJ argued that, should the case be remanded, it would ultimately seek dismissal itself under 31 U.S.C. § 3730(c)(2)(A). Presciently, Jeff Belkin and Mike Mortorano wrote for Law360 here about seeking DOJ dismissal of False Claims Act cases under that little-used provision, noting that DOJ may be sensitive to “closing off a legal theory of recovery in future [...]Read more

Alston & Bird 2018 GovCon Briefing and CLE: Washington, D.C.

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On October 24, the Government Contracts team at Alston & Bird hosted its inaugural briefing in Washington, D.C. discussing the latest developments and industry updates in the government contracts space.  Presenters included Jeff Belkin, Jeniffer Roberts, Jessica Sharron, Jeremy Silverman, Andy Howard, Mike Mortorano and Katherine Veeder. The topics addressed were a variety of industry developments and key areas that are particularly salient in the current GovCon market.  Jeremy Silverman and Jeniffer Roberts provided a valuable bridge between the GovCon world and the M&A market by [...]Read more

DOJ Crackdown on False Certification for Small Business Set-aside Award

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As discussed in prior blog posts, the DOJ over the last few years has continued to crack down on small-business contracting fraud, including “pass through” and “sham” contracting schemes. This trend has continued, and the DOJ recently cracked down on a subcontractor’s false certification for a government small-business set-aside program. On May 3, 2018, the DOJ announced that MassTech Inc. (MTI) and its CEO and CFO agreed to pay the United States $1.9 million to resolve allegations that MTI falsely certified it was a small business concern in order to obtain a Small Business Innovation [...]Read more

Jeff Belkin Quoted by Law360 on Leaked DOJ FCA Memo

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On January 25, 2018, Jeff Belkin was quoted by Law360 in the article “FCA Memo No Proof of New DOJ Direction on Dismissals,” which covers a recently leaked memo from the U.S. Department of Justice (DOJ) detailing when DOJ attorneys should ask to dismiss “meritless” qui tam False Claims Act cases. The article covers varying viewpoints about what the impact of the memo will be on future FCA cases. Many FCA defense attorneys have reacted positively, some saying that the memo does suggest a change in policy. Others have reservations and remain unconvinced of actual policy changes. In the article, [...]Read more

Chris Roux and John Hanover Published in The Construction Lawyer on Implied False Certification Liability

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Alston & Bird partners Chris Roux and John Hanover had their article, “Implied False Certification Liability Under the False Claims Act: How the Materiality Standard Offers Protection after Escobar,” published in the Winter 2018 edition of The Construction Lawyer. The article takes an in-depth look at the viability of implied false certification claims under the False Claims Act by examining their use before and after the U.S. Supreme Court’s Escobar decision, the key elements of the decision, and how varying interpretations of the decision apply to the construction industry. Readers [...]Read more

Fifth Circuit Ruling Shows Government’s Actions Are Key Under Escobar

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Government contractors continue to closely follow the impact of the U.S. Supreme Court’s landmark False Claims Act decision in Universal Health v. U.S. ex rel Escobar. Most recently, in U.S. ex rel Harman v. Trinity Industries, the Fifth Circuit considered the heightened standard whistleblowers must meet under Escobar to prove materiality if the government continued to pay claims despite its knowledge of misconduct allegations. In Trinity Industries, Trinity, a manufacturing company and government contractor, appealed the denial of its motion for judgment as a matter of law. The underlying [...]Read more

Alston & Bird Partners Secure Dismissal from Delaware Qui Tam Suit

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On Friday, April 21, Alston & Bird obtained the dismissal of claims against two publicly traded retail companies, Ralph Lauren and Ruth’s Hospitality, from a qui tam lawsuit the State of Delware had intervened in. The retailers, along with nearly a dozen others, were named in State of Delaware v. Card Compliant, et al., pending in the Superior Court of the State of Delaware. The state was alleging violations of the Delaware False Claims and Reporting Act resulting from alleged noncompliance with Delaware’s Escheats Law involving unused gift card balances. In Friday’s ruling, Superior [...]Read more

Circuit Court Signals Potential Impacts of Escobar

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Lower courts have begun grappling with the implications of the U.S. Supreme Court’s decision in Universal Health Services, Inc. v. United States ex rel. Escobar. In U.S. ex rel. Sheet Metal Workers International Association v. Horning Investments, LLC, a union filed a qui tam lawsuit against Horning Investments, LLC. Horning, a roofing company, was acting as a subcontractor for a construction project for the U.S. Department of Veterans Affairs. The union claimed that Horning violated the False Claims Act by failing to pay union workers in accordance with the Davis-Bacon Act. Under the Davis-Bacon [...]Read more

The Supreme Court Weighs In on the Implied Certification Theory of False Claims Act Liability

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The Supreme Court has handed the Department of Justice and qui tam relators a bigger hammer to wield against government contractors with its opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, confirming the viability of the implied certification theory of False Claims Act (FCA) liability. In this case, the relators filed a qui tam action alleging that a provider of mental-health services in Massachusetts violated the FCA when it submitted Medicaid reimbursement claims that included representations about the services provided, but failed to disclose that the service [...]Read more

Supreme Court Hears Oral Arguments in Significant False Claims Act Case

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Our colleagues Jackie Baratian and Jason Popp summarize here the oral argument for Universal Health Services v. United Sates ex rel. Escobar heard by the U.S. Supreme Court on Tuesday, April 19th, laying out the various arguments presented by counsel and addressed by the Justices.  As they note, much of the argument focused on the Restatement of Contracts, as a source of “fraud” in contracting common law, to help draw a distinction between an implied promise and an immaterial unspoken performance detail.  The Justices also took note of the decision in Halper, in which the Supreme Court in [...]Read more