Ninth Circuit Loosens the False Claims Act Original Source Requirement for Whistleblowers

In an en banc decision filed July 7, 2015, the Ninth Circuit reversed the district court’s original dismissal of consolidated qui tam suits brought by whistleblowers, alleging that their former employer, Kinetic Concepts, Inc., had fraudulently claimed reimbursements from Medicare. See US ex rel. Hartpence v. Kinetic Concepts, Inc. (12-55396) and US ex rel. Godecke v. Kinetic Concepts, Inc. (12-56117). The Court held that there are now only two requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act (FCA): (1) before filing the action, the whistleblower must voluntarily inform the
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“Request for Payment” Link Reinforced By Recent Federal Ruling

On January 7, 2015, a California federal judge granted an FCA defendant’s Motion to Dismiss premised on allegations that it failed to comply with Good Manufacturing Practices (“cGMPs”) regulations. See U.S. ex rel. Campie v. Gilead Sciences, Inc., No. 11-cv-00941 (N.D. Cal. Jan. 7, 2015). In this case, two former Gilead employees with quality control responsibilities filed a Qui Tam action against their previous employer alleging various violations of cGMP requirements. The relators asserted in their Complaint that they discovered and reported to Gilead officials numerous violations of Federal Food and Drug Administration (“FDA”) regulations, but that Gilead concealed those
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An Important Ninth Circuit Decision on Scope of Liability under the False Claims Act.

In 2014, the Ninth Circuit issued an important decision on the notion that good faith disputes and/or disputed interpretations of contract requirements should not be actionable as false claims. In Gonzalez v. Planned Parenthood, 759 F.3d 1112 (9th Cir. 2014), the relator alleged that the Medi-Cal billing manual required Planned Parenthood to bill Medi-Cal “at cost” for contraceptives; which the relator alleged meant at Planned Parenthood’s acquisition cost. When Planned Parenthood submitted bills to Medi-Cal it billed costs for contraceptives at its “usual and customary rates.” In 1997, the California Department of Healthcare Services, the governing body for Medi-Cal, informed
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Negative Past Performance Evaluation? When and How to Challenge It.

The evaluation of a contractor’s past performance is one of the most important non-price factors taken into account by a procuring agency during the source-selection process. A negative past performance evaluation can substantially reduce a contractor’s chances of retaining work and/or obtaining future federal work.   Sometimes a contractor’s negative review is justified, and other times it is not. Whether you believe the evaluation is justified or not, it is important to understand what rights and procedures are available if you receive a negative past performance evaluation. The procedures that procuring agencies must follow when completing past performance submissions and the
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