U.S. Sides with Defendant Against Whistleblower—Sort of

Today’s riddle: why would the government take the defendant’s side against the whistleblower in a False Claims Act qui tam case?  Why would the government challenge the whistleblower’s claim that two defendants violated the Stark Law, insisting instead that they met a Stark exception?

A Georgia federal court’s March 28 decision provides the answer.  The bottom line is that the U.S. position was part of an argument that the whistleblower should get less of a $25 million settlement than he asked for.

Richard Barker filed a qui tam case against his former employer Columbus Regional and an oncology practice, alleging various FCA violations, including the Stark violation.  The U.S. didn’t intervene.  But when discovery led to identification of further wrongdoing and another suit, the U.S. intervened in the second case.

The U.S. settled both cases for $25 million.  That raised the issue of how much of the settlement was attributable to each case and therefore how much Richard’s share should be.  In arguing that half the settlement should be attributed to each case, Barker valued the Stark claim at $24.8 million.  The U.S. position was that the Stark claim was worth zero because the defendants met the consultation exception to Stark.

The court sided with the U.S.  But don’t lose any tears over Richard.  He still walked away with $5,337,000—not the $6,738,000 he asked for, but not sofa change.

The case is U.S. ex rel. Barker v. Columbus Regional Healthcare, 2016 BL 94938 (M.D. Ga. 2016).

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