Second Circuit: United States ex rel. Weiner et al. v. Siemens AG et al.

 As the qui tam statute references both the unsealing of the complaint and the court's direction to serve the defendant, the clock for serving the defendant did not begin to run until the court ordered service.  

United States ex rel. Weiner et al. v. Siemens AG et al.

Seventh Circuit: Thomas Prose v. Molina Healthcare of Illinois,

 

Evidence as to where, how, and to whom allegedly false representations were made can state a claim under the statute for fraudulent claims against the government.

Evidence as to the who, what, where, when, and how can state a claim for fraudulent inducement in contractual negotiations; a relator who is not a party to the negotiations might be unable to provide details of the negotiations.

Implied false certification is a species of fraud, and therefore subject to heightened pleading.   

Continuing to bill the set capitation after ending the subcontracting that provided enhanced services states a claim for implied false certification under the Act, since the services were a material term of the deal.

DISSENT (CJ)

Mere request for payment from the government while not materially complying with a contractual term is insufficient to state a claim under the Act, given the Act's extreme remedies, including treble damages.

Contract was a contract to provide beneficiaries with access to needed services, not needed services themselves.

These circumstances wouldn't state a claim, even absent heightened pleading.  There was no express factual falsity; the omission was an implied falsity.  Precedent requires that a request for payment also make specific representations in order to be actionable.  Suggesting that noncompliance is material means that any noncompliance is material.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-19/C:20-2243:J:Wood:aut:T:fnOp:N:2749985:S:0

Fifth Circuit: Michael Vaughn, ex rel., et al v. United Biologics

A relator under the Act can seek voluntary dismissal with prejudice for purely private interests without binding the non-intervening government side, whose interests in the claim are dismissed without prejudice.

Statute requiring written opinion and reason for decision presents two freestanding requirements which can be accomplished separately.

Relators' having shared counsel with second relator in another forum who intends to pursue the action does not establish bad faith.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20389-CV0.pdf

Third Circuit: Marc Silver v. Omnicare Inc

Although the statute does not permit a relator to pursue a qui tam action where the fraud is public knowledge, where the relator uses privately available information to make sense of the public information and the public information, standing alone, would not reasonably or plausibly supported an inference of fraud under the heightened pleading requirements for the claim.

http://www2.ca3.uscourts.gov/opinarch/164418p.pdf

Second Circuit: United States of America ex rel. Wood v. Allergan, Inc.

As the statute bars bringing a claim when another claim is pending (even under seal), amendment of claim subsequent to the end of the first-filed suit does not allow the later-filed suit to survive the statutory bar.

http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/doc/17-2191_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ef543637-0188-4de4-a0a9-d7b548d25e63/2/hilite/

Tenth Circuit: Polukoff v. St. Mark's Hospital

Realtor's claim that a physician was billing the government for unnecessary cardiac surgeries states a claim where the medical opinion that a procedure is reasonable and necessary does not comport with the government's definitions of reasonability and necessity.

Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.

https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf

Sixth Circuit: U.S. ex rel. Marjorie Prather v. Brookdale Senior Living Cmty., et al. - Middle District of Tennessee at Nashville

In a False Claims Act suit, a time factor is material where the governing statute references a regulation that, in the process of defining the list of terms within the referenced regulation, subsequently incorporates the timing factor.

Past practice is not dispositive at the motion-to-dismiss stage where there is no showing that the government was aware of the factor.

Training and instruction publications can help to establish that a certain factor goes to the essence of the bargain.

Sufficient proof of scienter for trial where deft instructed cursory review, was advised of requirements, and implicitly referenced the violation in internal emails.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0110p-06.pdf

Eighth Circuit: United States ex rel Fields v. Bi-State Devel. Agency, etc.

FRCP, Federal Jurisdiction, FCA


An inter-state compact entity's interlocutory appeal asserting lack of jurisdiction under the False Claims Act is not sufficiently final for appellate review, as it does not implicate sovereign immunity under the 11th Amendment, which, although related, is a distinct claim that has to be asserted below.


Eighth Circuit: United States ex rel Fields  v.  Bi-State Devel. Agency, etc.

Seventh Circuit: Sheet Metal Workers Internatio v. Horning Investments, LLC

Labor, FCA


Union can bring a False Claims Act action relative to its members work -- primary jurisdiction of the Department of Labor does not displace the claim to the NLRB.

Payroll deductions for an insurance plan for which the worker was not yet eligible did not constitute a violation of the relevant Act.

Reliance on accountants dos not completely dispel mens rea.


Sheet Metal Workers Internatio v.   Horning Investments, LLC

Fifth Circuit: Thomas Howell v. Town of Ball, et al

FRCP, S1983, First Amendment, FCA

Appeals court does not have jurisdiction over cross-appeal relating to a non-dismissed claim when hearing an interlocutory appeal on the dismissed claims.

Local police officer's cooperation with federal anti-corruption probe was outside of normal duties, so the firing was potentially in response to protected conduct, but the right was not clearly established at the time.

Non-final decisionmakers not liable for retaliation claim under S1983, but municipal liability claim here presents a genuine issue of material fact.

Amendment to FCA removing "employee" language was to allow contractors to file claims, not non-employees generally.

Thomas Howell v. Town of Ball, et al

First Circuit: Winkelman v. CVS Caremark Corporation

FCA, FRCP

Documents that the court of first instance took judicial notice of on the assumption that the Act's public disclosure bar was jurisdictional are properly considered in appellate review, even when the review declines to construe the bar as jurisdictional.

Public disclosure of price gouging sufficed to trigger public dislosure bar for relator asserting claim that that the vendor engaged in a scheme to defraud, despite relator's disclosure of increased temporal and geographic scope.

Winkelman v. CVS Caremark Corporation

DC Circuit: United States v. Philip Morris USA Inc.

FCA

Relator's FCA action barred due to prior disclosure of the general practice.

Court-ordered disclosures are sufficient to trigger the bar.

Ancillary contractual violations would have been discovered after the principal one was revealed.

Competitor's knowledge of practices was secondhand, as he had no affiliation with the deft.

United States v. Philip Morris USA Inc.

Third Circuit: Moore & Co P A v. Majestic Blue Fisheries LLC

FCA

Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.

Documents acquired by FOIA can constitute a prior disclosure.

Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.

http://www2.ca3.uscourts.gov/opinarch/144292p.pdf

Seventh Circuit: August Bogina, III v. Medline Industries, Incorporated

Statutory interpretation, False Claims Act

Where a provision of a statute clarifies an ambiguity in a parallel earlier provision, the new reading may be retroactively applied.

Where the relator in a qui tam action under the False Claims Act merely supplies detail for things already known in outline from previous suits, the court does not have jurisdiction under the statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-04/C:15-1867:J:Posner:aut:T:fnOp:N:1680761:S:0