© 2019 Haynes and Boone, LLP
TABLE OF CONTENTS
Clients and Friends,
The False Claims Act, 31 U.S.C. §§ 3729 et seq. (FCA), continued to be a significant focus of government and whistleblower activity in 2018. This Year in Review highlights several key developments, including:
The recovery by the government of more than $2.8 billion in settlements and judgments in FCA cases in 2018.
The aftermath of the Supreme Court’s landmark decision in Escobar and the varying interpretations of “materiality†under the FCA.
Significant judicial decisions regarding the first‑to‑file rule, the public disclosure bar, and pleading requirements for FCA cases, among other issues.
In 2018, Haynes and Boone represented healthcare providers, defense contractors, and individuals in FCA investigations and lawsuits. We successfully resolved matters before lawsuits were filed, negotiated favorable settlements, and continued to defend our clients in active litigation. We also advised a number of contractors and healthcare providers regarding FCA compliance and other related issues.
If you have any questions about the issues covered in this year’s Review, please let us know. We look forward to working with our friends and clients in 2019.
Stacy Brainin, Bill Morrison, Chris Rogers, Nicole Somerville
MEET THE AUTHORS
A. 2018: A LOOK BACK AT THE NUMBERS
B. UPDATE ON ENFORCEMENT POLICIES AND LEGISLATION
1. Enforcement Update .............................  6
2. Legislative Update ..................................  7
C. SIGNIFICANT JUDICIAL DECISIONS
1. Post‑Escobar: Materiality and Implied Certification...............................................  8
2. Pleading with Particularity .................. 11
3. Falsity ..........................................................  13
4. Reverse False Claims ............................  13
5. Scienter ......................................................  14
6. Statute of Limitations ...........................  15
7. Public Disclosure and Original Source .........................................................  16
8. First‑to‑File Rule.....................................  17
9. Anti‑Kickback Statute ..........................  18
10. Retaliation Against Whistleblowers  19
INDEX OF AUTHORITIES
2018 YEAR IN REVIEW: THE FALSE CLAIMS ACT2haynesboone.comhaynesboone.com
CHRIS ROGERS is a partner whose litigation practice focuses on controversies involving actual or threatened government enforcement. He has represented corporations and individuals who were targets, subjects,
or witnesses in criminal investigations by government agencies, including the DOJ, HHS OIG, SEC, DOD, US DOT, and states attorneys general. Chris represents clients in litigation involving the False Claims Act, the Anti‑Kickback Statute, the Stark Law, ERISA, and antitrust laws. His clients operate in many different industries, including healthcare, telecommunications, banking, securities, construction, and military contracting.
STACY BRAININ has extensive experience in white collar criminal defense and government investigations, including representation of companies and individuals in both criminal and civil False Claims Act matters. Her
practice also includes complex business litigation with an emphasis in healthcare and professional liability matters. She has defended cases alleging civil and criminal business fraud in state and federal courts throughout the country. Stacy represents and advises healthcare providers in civil and criminal disputes with state and federal government agencies. She is experienced in handling internal investigations, compliance programs and legal audits.
BILL MORRISON is a partner and co‑chair of the firm’s Healthcare and Life Sciences Practice Group. Prior to Haynes and Boone, he served as Vice President and Assistant General Counsel of Tenet Healthcare, where he
oversaw civil and criminal investigations involving FCA matters, class actions, and other high‑level disputes. As a private practice lawyer, he has represented national healthcare providers in connection with federal grand jury subpoenas and with Civil Investigative Demands regarding potential FCA violations.
ANDREW GUTHRIE focuses his practice on appeals and critical trial court briefing across an array of subject matters, including the False Claims Act, business disputes, products liability, intellectual property, probate & trusts,
and water rights. Prior to joining the firm, Andrew clerked for the Honorable Don R. Willett of the Texas Supreme Court.
NEIL ISSAR is an associate who focuses on government investigations, white collar defense, fraud and abuse laws, navigation of regulatory and compliance issues involving the healthcare industry, and the defense of healthcare and other clients in litigation.
PHIL KIM has extensive experience in healthcare law and focuses his practice on transactional and regulatory healthcare matters for healthcare clients. He represents various types of providers, ranging
from healthcare systems, hospitals, ambulatory surgery centers, physician groups (including non‑profit health organizations, or NPHOs), home health providers, and other healthcare professionals in mergers and acquisitions, joint ventures, and operational matters. Phil regularly assists clients on various types of healthcare arrangements and provider agreements, and he advises clients on healthcare compliance issues involving liability exposure, the Stark law, anti‑kickback statutes, and HIPAA/HITECH privacy issues.
MEET THE AUTHORS
NICOLE SOMERVILLE is counsel in the firm’s Litigation Practice Group and focuses on False Claims Act qui tam litigation and government investigations. Nicole has experience assisting clients with investigations of
potential violations of the Anti‑Kickback Statute, the Stark Law, and the False Claims Act. In addition, she represents both healthcare and government contracting clients in disputes with state and federal agencies.
