False Claims Act LITIGATION/CONTROVERSY

With a team of veteran False Claims Act (FCA) litigators and former Justice and Defense Department lawyers, WilmerHale brings unparalleled knowledge and experience to FCA matters. We regularly represent clients in sectors of the economy facing greatest FCA activity, including defense, pharmaceutical and health care, information technology and financial services.

Our team includes lawyers who were directly responsible for the litigation, management and settlement of major FCA investigations and cases during periods of government service and who now defend against them. We approach each matter with a deep understanding of the government’s objectives, and we have obtained favorable resolution of numerous matters without a formal action being filed.

We have been able to obtain early dismissal or resolution of suits brought by qui tam plaintiffs and the government by focusing on precedent-setting legal defenses. By conducting credible internal investigations and negotiating with the Department of Justice (DOJ), we have also helped clients to avoid criminal prosecution and to accomplish appropriate civil resolutions of parallel criminal, civil, and administrative proceedings. If a case goes to trial, we have experienced courtroom advocates who have tried and won FCA cases before juries.

Our FCA group includes:

  • a former Assistant Attorney General for the Civil Division of the Department of Justice, who in that capacity directed DOJ’s Civil Frauds Unit and approved all major settlements and intervention decisions nationwide; he also had served as Deputy General Counsel of the Department of Defense, responsible for overseeing all litigation, including FCA litigation.
  • a former Deputy Chief of the Civil Division of the Boston US Attorney’s Office, one of the most active such offices in the country, where she litigated and supervised major FCA actions, particularly within the health care industry.
  • a former Acting General Counsel of the Department of Defense and General Counsel of the Department of the Navy, who in those capacities managed major civil fraud and government contract matters; in addition, he served as the Deputy Assistant Attorney General responsible for appellate litigation of FCA cases.
  • numerous lawyers with FCA trial experience, as well as litigators who specialize in handling government contracts litigation, including bid protests, disputes concerning performance or payment, and suspension and debarment proceedings.

With a team of veteran False Claims Act (FCA) litigators and former Justice and Defense Department lawyers, WilmerHale brings unparalleled knowledge and experience to FCA matters. We regularly represent clients in sectors of the economy facing greatest FCA activity, including defense, pharmaceutical and health care, information technology and financial services.

Our team includes lawyers who were directly responsible for the litigation, management and settlement of major FCA investigations and cases during periods of government service and who now defend against them. We approach each matter with a deep understanding of the government’s objectives, and we have obtained favorable resolution of numerous matters without a formal action being filed.

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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

Experience

In recent matters, our lawyers have:

Defense and National Security

  • Negotiated a global settlement of all FCA claims and other civil liability for a major aerospace company in connection with multiple criminal and civil investigations arising from allegations of conflicts of interest and use of competitor proprietary information in Air Force contracting, described by the Justice Department as the largest federal procurement fraud settlement in history.
  • Successfully resolved, for a nominal sum and without any admission of liability, a qui tam action brought by a former employee who alleged that our defense contractor client had misrepresented the quality of certain circuit boards supplied to the US military.
  • Secured a decision terminating debarment proceedings on behalf of an Air Force contractor, without an administrative agreement or any adverse action; settled asserted civil fraud claim without admission of liability or payment of multiple damages or penalties; and resolved related contract dispute with no-cost termination for convenience.
  • Obtained early dismissal for a defense contractor in qui tam litigation alleging misrepresentation of costs in connection with a major Navy weapons program, following the government’s assertion of the State Secrets privilege.
  • Secured the dismissal on favorable terms of a qui tam FCA suit brought against a defense contractor and the company’s former CEO arising from the sale of allegedly defective products to the US Air Force.
  • Won dismissal of an FCA suit against a defense contractor client on the basis of the FCA’s public disclosure bar.

Pharmaceutical and Health Care

  • Represented a health care company in an FCA matter in which the Department of Justice was persuaded not to file suit against the company, and the company settled on favorable terms with the Department of Health and Human Services.
  • Won dismissal of a qui tam action filed by a former employee alleging that a major pharmaceutical company misrepresented the relative potency and cost of two of its medications.
  • Obtained a global civil resolution on behalf of a medical device manufacturer in an investigation by a US Attorney’s Office arising from a former employee’s allegations that the company had an inadequate complaint reporting system under the Food Drug & Cosmetic Act and had misrepresented the quality of numerous medical devices to the government.
  • Successfully resolved, on a civil basis, parallel civil and criminal investigations of a health care company by a US Attorney’s Office arising from qui tam allegations that the company had submitted fraudulent claims to Medicare and Medi-Cal in violation of the FCA.
  • Represented several pharmaceutical companies in multiple DOJ investigations of allegations that their marketing practices violated the FCA.
  • Secured dismissal of an FCA retaliatory discharge claim against a major pharmaceutical manufacturer.
  • Resolved on favorable terms an investigation and related debarment proceeding of a medical device manufacturer by the Defense Criminal Investigative Service and a US Attorney’s Office arising from the sale of allegedly defective medical devices to the US Army.

Financial Services

  • Obtained early dismissal for a non-bank small business loan lender in an FCA civil action based on allegations of false certifications in connection with a Small Business Administration program. The court granted our motion to dismiss on the ground that it lacked subject matter jurisdiction under the public disclosure bar.
  • Represented a major financial services company in a Department of Justice criminal and civil investigation relating to the company’s participation in a federally subsidized loan program.
  • Represented a second major financial services company with respect to a qui tam complaint relating to alleged false certifications.

Other Industries

  • Successfully tried to verdict a major qui tam action involving alleged bid-rigging of construction contracts. In the course of the case, which lasted more than a decade and involved a seven-week jury trial, we briefed and argued dozens of legal issues that arise in FCA litigation.
  • Obtained early dismissal for a major media and entertainment company in a qui tam case. Less than three weeks after oral argument, the court issued an order dismissing the relator’s qui tam complaint with prejudice. Citing our brief and declaration extensively, the court determined that it lacked subject matter jurisdiction under the public disclosure bar.
  • Represented a government contractor in an FCA case alleging that the company failed to supply the General Services Administration with office products from permissible countries under the Buy American Act and Trade Agreements Act.

Publications & News

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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 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.

October 25, 2013

WilmerHale Partners Co-Author US Chamber of Commerce Study on Reforming the False Claims Act

May 6, 2013

WilmerHale FCA Members Publish Two-Part Article Series in Financial Fraud Law Report

April 1, 2013

False Claims Act: 2012 Year-in-Review – Part II

An article by Jennifer M. O’Connor, Christopher E. Babbitt, David W. Ogden and Jonathan G. Cedarbaum, published in the April 2013 edition of Financial Fraud Law Report.

March 22, 2013

Fourth Circuit Expands FCA Limitations Period

In United States ex rel. Carter v. Halliburton, a divided panel of the U.S. Court of Appeals for the Fourth Circuit expanded the scope of potential False Claims Act (FCA) liability for government contractors by holding that the Wartime Suspension of Limitations Act (WSLA) suspends the six-year statute of limitations in qui tam FCA cases even when the government has not intervened.