A False Claims Act lawsuit was recently dismissed in U.S. ex rel. Hopper v. Solvay Pharmaceuticals, Inc., 11th Cir. Case No. 08-15810. The relators had alleged that Solvay engaged in an off-label marketing campaign to increase the sales of Marinol, that this campaign induced physicians to write off-label prescriptions, that pharmacies and other healthcare providers thereafter submitted claims to state healthcare programs for reimbursement and that state agencies then submitted claims to the federal government for payment.

However, the complaint did not identify a single physician who wrote a prescription with knowledge that the cost would be borne by the federal government, did not identify a single pharmacist who filed such a prescription and did not identify a single state healthcare program that submitted a claim for reimbursement to the federal government. Thus, there was inadequate particularity for a fraud case.

The court further held that it is not enough to allege with particularity that the government paid a false claim; the complaint must also allege that the defendant intended its false statements to influence the government's decision to pay a false claim.