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 significant 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

Co-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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August 10, 2016

Civil Penalties Set to Increase Significantly, Many Present Retroactivity Concerns

Over the past several months, many federal agencies have adopted rules significantly increasing the maximum civil monetary penalties (CMPs) they can potentially impose. The increased penalty amounts were adopted in response to recent legislation from Congress requiring that federal agencies make adjustments to “catch up” with inflation.

July 13, 2016

Civil Fines Jump Across Agencies Under Inflation Adjustment Act

Civil fines across federal agencies have recently been increased dramatically under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (Sec. 701 of Public Law 114-74), with some more than doubling. Companies violating the Hart-Scott-Rodino (HSR) Improvements Act, the Securities and Exchange Act, or the Occupational Safety and Health Act (OSHA), among others, could soon face civil monetary penalties that are up to 150% higher than the existing levels. According to the Congressional Budget Office, the 2015 Act would increase the federal government's revenue by $1.3 billion over the next ten years.

June 16, 2016

Supreme Court Upholds Implied Certification Liability, While Emphasizing Materiality Requirement

In Universal Health Services v. United States ex rel. Escobar, the Supreme Court unanimously upheld the “implied certification” theory of liability under the False Claims Act (FCA), while emphasizing that only material misrepresentations are actionable.

May 27, 2016

WilmerHale Lawyers and Practices Recognized in 2016 Edition of Chambers USA

Chambers USA: America's Leading Lawyers for Business announced its final rankings for the 2016 edition, with WilmerHale ranking among the nation's best in 47 practice area categories. Chambers also ranked 82 WilmerHale lawyers as leaders in their respective fields.

January 12, 2016

False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department continued to give high priority to False Claims Act investigations, bringing in nearly $3.6 billion in settlements and judgments.

December 7, 2015

Supreme Court To Address Permissibility and Scope of Implied Certification Liability Under the False Claims Act

On Friday, December 4, the Supreme Court agreed to hear a case raising the questions of whether implied certification liability is permissible under the False Claims Act and, if so, under what circumstances.

October 26, 2015

Partner Jonathan Cedarbaum Elected to the American Law Institute

Partner Jonathan Cedarbaum is one of 72 newly elected members of the American Law Institute.

May 26, 2015

Supreme Court Strengthens False Claims Act’s Statute of Limitations, Narrows First-to-File Bar

The U.S. Supreme Court today resolved two important questions under the False Claims Act, holding that (1) the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, applies only to criminal cases, and (2) the FCA’s first-to-file bar, 31 U.S.C. § 3730(b)(5), ceases to apply once the earlier-filed action that might have created the bar has been dismissed.

March 16, 2015

Partner David Ogden Discusses FCA Reforms at 2015 Global Ethics Summit

WilmerHale Partner David Ogden was a guest speaker during several events at the 7th Annual Global Ethics Summit held in New York on March 10-11, 2015.

January 29, 2015

False Claims Act: 2014 Year-in-Review

The federal government collected a record-breaking $5.7 billion in False Claims Act (FCA) recoveries in fiscal year (FY) 2014, up from $3.8 billion in FY 2013.