Maybe the Yacht Was the Tip-Off

If you’re a surgical device distributor and you want to reward a surgeon for using your products on Medicare and Medicaid patients, you may want to choose a reward that’s less conspicuous than a yacht. That’s one lesson in the recent decision in US ex rel. Cairns v. D.S. Med.  In denying defendants’ …

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Bad News for Whistleblowers: Defendant Pleads Guilty

At first glance, it looks nonsensical. How could it be bad news for False Claims Act whistleblowers that the defendant pleaded guilty to violating that statute—to committing the very Medicare fraud the whistleblowers alleged? The explanation lies in two legal principles and one fact. First, there’s a …

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Who Says Ignorance of the Law Is No Excuse?

If you think that ignorance of the law is no excuse, take a look at the Eleventh Circuit’s opinion in US ex rel. Phalp v. Lincare Holdings. It leaves no doubt that in a False Claims Act case, ignorance can be a solid defense. Oxygen supply company Lincare was sued by two former salesmen for violating of the …

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Judge Has No Interest in DOJ’s Statement of Interest

In yet another demonstration of the benefits of lifetime tenure, a federal judge in Florida has told the Department of Justice to take a hike. It happened when the DOJ asked for permission to submit a “statement of interest” in a gigantic False Claims Act case—but only after having declining to intervene in …

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The Downside of the Advice-of-Counsel Defense

Intent is a necessary element of a False Claims Act (FCA) violation.  If a defendant reasonably relied on advice of counsel in performing the actions at issue, the intent element is absent.  That’s the upside of the advice-of-counsel defense.  But there’s a downside, and a recent federal decision in a major …

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Jurisdiction to Freeze Assets but Not to Thaw Them

A recent Fourth Circuit opinion in a False Claims Act case demonstrates that while the government can freeze defendants’ assets before trial with lightning speed, getting them unfrozen can take anywhere from many years to never. In 2014 whistleblowers filed a qui tam action against BlueWave Healthcare …

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