False Claims Act LITIGATION/CONTROVERSY

Led by litigators who previously served as senior lawyers with the Departments of Justice and Defense, our team has successfully represented clients in difficult, high-stakes FCA litigation brought by relators and the government.


With a team of veteran litigators, prosecutors and former Justice and Defense Department lawyers, WilmerHale brings unparalleled knowledge and experience to defending against False Claims Act litigation brought by relators and the Department of Justice. We approach each case with a deep understanding of the government’s objectives and have obtained favorable resolutions of numerous matters without a formal action being filed. In qui tam litigation, we have obtained early dismissal or resolution of suits brought by relators with precedent-setting legal defenses in the district court and on appeal.

We regularly represent and counsel clients in industries facing the greatest FCA exposure: pharmaceuticals and health care, defense, government procurement, financial services, energy, and information technology.

Contacts

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Ogden, David W.

David W. Ogden

Chair, Government and Regulatory Litigation Practice Group

+1 202 663 6440 (t)

david.ogden@wilmerhale.com

Shapiro, Howard

Howard M. Shapiro

Chair, Litigation/Controversy Department

+1 202 663 6606 (t)

howard.shapiro@wilmerhale.com

Jonas, Stephen A.

Stephen A. Jonas

Chair, Investigations and Criminal Litigation Practice Group

+1 617 526 6144 (t)

stephen.jonas@wilmerhale.com

Background

Our team includes former senior government officials who have held positions with direct responsibility for enforcement of the False Claims Act on behalf of the United States, as well as experienced litigators with a record of success in defeating or resolving FCA cases in private practice. Our FCA litigators work closely with lawyers in our Government Contracts Litigation Practice, who have deep experience with the intricacies of federal procurement law and matters of administrative suspension and debarment, as well as members of our Appellate and Supreme Court Litigation Practice on precedent-setting FCA decisions from the federal appellate courts.

We have represented clients in a range of industries in response to investigations by the Department of Justice and obtained favorable resolutions of matters without a formal action being filed. We approach our engagement with the Department of Justice with the benefit of many of our lawyers having been responsible for FCA enforcement matters during their own government service.

WilmerHale also has a record of success in defending against qui tam litigation—an increasing part of the FCA docket. We have obtained dismissal of cases on threshold questions of jurisdiction under the FCA’s public-disclosure and first-to-file bars, for failure to plead fraud with particularity under Rule 9(b), on grounds that the challenged conduct was not precluded by the relevant terms of procurement, and on grounds that the relator had released his right to bring FCA claims against our client. To be sure, certain cases may warrant settlement, and WilmerHale has substantial experience negotiating settlements directly with the government, when settlement discussions with relators prove unproductive.

Experience

Our False Claims Act Group includes:

  • A former US Deputy Attorney General in the Clinton Administration, who in that capacity had ultimate oversight over the Department of Justice’s Civil Frauds Unit and considered major interventions and settlements. She also served as General Counsel of the Department of Defense, overseeing all litigation, including FCA litigation.
  • A former US Deputy Attorney General in the Obama Administration, who supervised all of the Department of Justice’s litigating and law enforcement components (including the DOJ’s Civil Fraud Unit and the US Attorneys’ Offices) and co-led (with the Deputy Secretary of Health and Human Services) the Administration’s “HEAT” initiative against health care fraud. He also served as Assistant Attorney General for the Civil Division in the Clinton Administration, directly supervising FCA enforcement for the United States; and as Deputy General Counsel for the Department of Defense, where he supervised all litigation, including FCA and government contracts litigation.
  • A former First Assistant US Attorney and Deputy Chief of the Civil Division of the Boston US Attorney’s Office, one of the most active offices in the country, where she litigated and supervised major FCA actions.
  • A former Deputy Assistant Attorney General and Principal Deputy Associate Attorney General of the Department of Justice, who in those capacities worked closely with the Civil Frauds Unit on high-profile matters, and who in the latter capacity considered major interventions and settlements proposed by that unit.
  • A former Deputy US Attorney for the Southern District of New York, who participated in the creation of the SDNY’s Civil Frauds Unit in 2010 and oversaw its civil fraud actions in the financial services and health care sectors, including actions under the FCA.
  • A former Assistant Attorney General for Legal Policy, who worked extensively on behalf of the Department of Justice negotiating amendments proposed by Congress to the FCA.
  • A former US Attorney for Colorado, who also served as Chief of Staff and Assistant Secretary for the US Department of the Interior.
  • Numerous lawyers who handle government contracts litigation, including bid protests, disputes concerning performance or payment, and suspension and debarment proceedings.

Highlights

  • The successful representation of a major communications company in qui tam litigation related to an alleged violation of the False Claims Act by improperly billing the federal government for certain taxes and surcharges, in which the district court dismissed the claim for lack of jurisdiction under the first-to-file bar of the False Claims Act and the DC Circuit affirmed the dismissal on appeal.
  • The successful representation of a major defense contractor in qui tam litigation related to the company’s development of a laser-targeting device, in which the district court dismissed the case with prejudice, concluding that the relator’s amended complaint failed to state a claim.
  • The successful representation of a technology and management consulting contractor in the settlement of longstanding litigation with the US Government regarding alleged violations of the False Claims Act, the Anti-Kickback Act and breach of government contracts.
  • The successful representation of a diagnostic testing company in qui tam litigation related to alleged violations of submitting overstated invoices for lab services to the Commonwealth of Massachusetts, in which the Massachusetts Superior Court dismissed the claim with prejudice.
  • The successful representation of a major office supply company in False Claims Act litigation relating to country of origin for imported pencils in relation to US Customs and Border Protection forms, in which the district court completely dismissed the case with prejudice.
  • The successful representation of a pharmaceutical company in qui tam litigation related to the marketing of a prominent medication, in which the Fourth Circuit held that the relator’s claims were barred under a release he filed upon his departure from the company.
  • The successful representation of a defense contractor in a single-court qui tam action relating to reimbursement for Defense Base Act workers compensation, in which the district court dismissed the claims.
  • The successful representation of a small business loan company in a qui tam appeal relating to false certifications to the Small Business Administration in connection with shrimp boat loans, in which the Eleventh Circuit upheld the dismissal from the district court.
  • The successful representation of an optoelectronics and advanced electronic systems company in a qui tam complaint related to the manufacture and sale of high-voltage switches used in military radar systems, in which the federal government declined to intervene after an investigation by the US Attorney’s Office.

Publications & News

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July 2, 2014

DC Circuit Issues Major Ruling Affirming Broad Applicability of Attorney-Client Privilege to Corporate Internal Investigations

On June 27, 2014, the US Court of Appeals for the DC Circuit issued a major decision clarifying the scope of the attorney-client privilege as applied to corporate internal investigations.

July 2, 2014

US Supreme Court Agrees To Address Two Important False Claims Act Issues

Yesterday, the Supreme Court granted certiorari in Kellogg Brown & Root v. United States ex rel. Carter, No. 12-1497, a case presenting two important issues under the False Claims Act (FCA).

May 1, 2014

Reforming the False Claims Act for the 21st Century

An article by Partners David Ogden and Jonathan Cedarbaum, published in the May 2014 edition of Contract Management, pp. 28-37.

April 9, 2014

Testify First, Know Why Later: Responding to Civil Investigative Demands for Testimony in False Claims Act Cases

An article by Karen Green and James Fauci, published in the April 2014 edition of Financial Fraud Law Report.

February 24, 2014

Fourth Circuit Holds cGMP Violations Do Not Create False Claims Under Medicare and Medicaid

In the first appellate decision of its kind, the U.S. Court of Appeals for the Fourth Circuit held on February 21, that because compliance with the Food and Drug Administration’s Current Good Manufacturing Practices (cGMP)  regulations is not a precondition for reimbursement under Medicare and Medicaid, violations of the cGMP regulations by themselves cannot form the basis for False Claims Act claims under those programs.

January 7, 2014

False Claims Act: 2013 Year-in-Review

The False Claims Act (FCA) saw another year of increased activity in 2013, with new qui tam suits hitting an all-time high of 753, a rise of more than 100 over 2012. In fiscal year 2013, the federal government brought in $3.8 billion—the fourth year in a row of more than $3 billion in recoveries. As in the past, the healthcare and pharmaceuticals sector accounted for the biggest share, with $2.6 billion recovered. Procurement saw a jump, more than doubling to $890 million. Financial institutions remained a substantial target, and both the government and private plaintiffs were increasingly bringing claims against recipients of grant and loan funds as well as contractors. Activity at the state level increased as well, with many states expanding the reach of their own false claims statutes, and both state attorneys general and private plaintiffs making aggressive use of new theories of liability.

December 19, 2013

The Lawyer Ranks WilmerHale Among Top 10 Global Litigation Practices

The Lawyer has ranked WilmerHale among the top 10 litigation practices in the world in this year's list of the Global Litigation Top 50—an annual analysis of which of the world's largest firms are generating the most fee income from disputes.

December 9, 2013

WimerHale Partner David Ogden Discusses The False Claims Act

WilmerHale Partner David Ogden participated as a speaker in a panel about reforms to The False Claims Act (FCA).

November 19, 2013

5 Ways To Make The FCA Fairer And More Effective

An article co-authored by Partners Jonathan Cedarbaum and David Ogden, published in Law360.

November 1, 2013

WilmerHale Among U.S. News – Best Lawyers® “Best Law Firms” and Again Named International Arbitration “Law Firm of the Year”

The 2014 edition of the U.S. News – Best Lawyers® “Best Law Firms” list names WilmerHale as “Law Firm of the Year” in International Arbitration—this is the second consecutive year that the firm has won this honor—and honors WilmerHale as a first-tier law firm in 27 national and 60 metro-area rankings.