WLF Media Briefing Program Focuses on Government’s Regulation of Information on “Off-Label” Drug Uses

Coleen Klasmeier, a partner with Sidley Austin LLP, Geoffrey M. Levitt, Senior Vice President and Associate General Counsel of Pfizer, Inc., and Jonathan L. Diesenhaus, a partner with Hogan Lovells US LLP discussed the impact of the Second Circuit’s December, 2013 Caronia decision on federal health product regulation and identify the latest developments and trends to follow in 2014 for public and private law enforcement targeted at off-label speech.

Court Ruling Recalls Injudicious Average Wholesale Price Litigation Crusade

Cross-posted by Forbes.com at WLF’s contributor site

A little over a decade ago, federal regulators and state attorneys general initiated a litigation campaign to alter how government health care programs reimbursed doctors for prescription drugs. Like most “regulation by litigation” efforts, this campaign seized upon laws of broad application such as the False Claims Act (FCA) and encouraged private lawsuits of questionable merit. Government enforcers have long since moved on to other crusades, but as a federal court decision last month reflects, some private suits still drag on, burdening American businesses with needless legal expenses.

AWP. In the early 2000s, the federal government reimbursed health care providers based in part on a drug’s average wholesale price, or “AWP.” Some likened AWP to the sticker price, or MSRP, of a new car: an inflated number which almost no one actually paid. Everyone involved in health care was aware of the illusory nature of AWP, and federal and state regulators urged legislative change, but Congress resisted reform. So unelected officials and their brethren in the plaintiffs’ bar sought to impose change. As this 2002 WLF Working Paper explains, they devised legal theories which branded AWP as an overcharging scheme, and accused drug makers, price publishers, and other entities such as pharmacy benefit managers (PBMs) of perpetrating a fraud. State attorneys general filed billion-dollar fraud actions and plaintiffs’ lawyers teamed up with “whistleblowers” to file qui tam suits under the FCA.

The ensuing litigation crusade provided moderate returns at best to the plaintiffs’ lawyers and state AGs who jumped on board. For instance, in 2009, the Alabama Supreme Court dashed the state’s (and its contingent-fee lawyers’) dreams of a huge payday, dismissing two AWP cases, finding no fraud existed. Continue reading

High Court Fails To Act On Major Business Case Cert Petitions

supreme courtCross-posted at Forbes.com’s WLF contributor page

Washington Legal Foundation, along with other organizations, business, and individuals with an interest in the Supreme Court and free enterprise cases before it, watched with great anticipation this morning as the justices issued their first new list of certiorari grants since the Court adjourned last June (the so-called Long Conference). We came away from the big cert grant morning, as likely did many other interested parties, wanting more.

The orders list is here. The grants include a tax case, United States v. Quality Stores  addressing whether severance payments made to employees whose employment was involuntarily terminated are taxable. Two other grants relate to the standard of review the U.S. Court of Appeals for the Federal Circuit uses when assessing a district court’s determination that a case is “exceptional” for purposes of imposing attorneys’ fees and other sanctions. Those cases are Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Management Systems Inc.

The final cert grant impacting free enterprise is Petrella v. MGM, which involves the movie Raging Bull and the defense of laches against claims of copyright infringement. Marcia Coyle at National Law Journal discussed the interesting facts of the case in a September 16 story.

The bigger story from the big cert grant morning was which petitions the Court did not act on. WLF filed amicus briefs in support of review in a number of the cases, which we’ll indicate below (all noted on SCOTUSblog’s “Petitions we Are Watching” page).

Failure to act on these and other petitions does not mean that the Court cannot reconsider them in a future “conference,” and it does not mean that they have been denied. The Court will be issuing an order list on First Monday, October 7, but that order traditionally has only contained cert denials.

Update: Seventh Circuit Reverses Trial Court’s Qui Tam Ruling and Attorney Sanctions

US-CourtOfAppeals-7thCircuit-SealLast March, we published a post applauding a U.S. District Court for the Southern District of Indiana ruling which dismissed a qui tam relator’s False Claims Act (FCA) suit on the grounds that the relator wasn’t the “original source” of the information motivating the claims. The judge also imposed sanctions against the relator’s lawyers, peppering her especially forceful justification of the financial penalty with pop culture and literary references.  U.S. ex rel. Leveski v. ITT Educational Services.

It came to our attention today that the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s ruling on its lack of subject matter jurisdiction (based on the FCA’s original source rule) and its attorney sanctions order, and then remanded the case back to the Southern District of Indiana for further proceedings.

The Seventh Circuit acknowledged that relator Leveski’s lawyers had unsuccessfully filed previous FCA suits against for-profit education businesses in situations where the lawyer “appears to have recruited relators who possessed little to no knowledge beyond what was already in the public domain.” The panel concluded, however, that

Leveski has added new facts and new details to this general knowledge that were not previously in the public domain. Even though prior relators . . . were not able to add new facts and new details, Leveski is different.  Through her deposition testimony and her affidavit, Leveski has informed the public about a new method of violating the HEA prohibition against incentive compensation—a method much more difficult to detect than outright commission and bonus schemes.

The appeals court thus found that Leveski had provided enough original information to inform her suit that she was an “original source.”

The court very briefly addressed the sanctions issue, writing, “Our lengthy discussion of Leveski’s case has shown that Leveski’s case appears to be substantial, not frivolous.” “Of course,” the court added,

if it becomes clear later in the course of litigation that Leveski has made up all of her allegations and all of her supporting evidence, then sanctions may be warranted. But for now, the truth of Leveski’s allegations is not appropriately resolved on a  motion to dismiss for lack of subject-matter jurisdiction.

4th Circuit Demands Greater Particularity in False Claims Act Suit Pleading

Mayer_Kirsten_72Hallward-Driemeier_Douglas_72ppiGuest Commentary

by Kirsten V. Mayer and Douglas Hallward-Driemeier, Ropes & Gray LLP

Last month, the U.S. Court of Appeals for the Fourth Circuit reaffirmed that False Claims Act relators must plead presentment of a false claim with particularity.  The decision in United States ex rel. Nathan v. Takeda Pharmaceuticals N.A. Inc. requires that relators proceeding under Section 3729(a)(1)(A) of the False Claims Act offer concrete details that plausibly allege—not just speculate—that actual presentment of a false claim occurred.  By requiring that relators plead false claims with particularity, the Fourth Circuit strikes a blow against relators who would prefer simply to allege a fraudulent scheme and proceed directly to costly discovery.  The holding should be particularly useful to defendants in “off-label” promotion cases, where relators often only speculate that ineligible claims were submitted for reimbursement to government-funded programs.

In Nathan, a Takeda sales manager alleged that Takeda’s Kapidex marketing caused false claims to be presented to the government in two main ways: (1) Takeda allegedly promoted Kapidex to rheumatologists, who do not typically treat patients with conditions that can be treated by Kapidex on-label; and (2) Takeda allegedly promoted Kapidex use at higher doses than FDA had approved.

Liability under Section 3729(a)(1)(A) requires that a defendant actually presented false claims to the government for payment.  Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 789 (4th Cir. 1999).  Nonetheless, the Nathan relator urged the Fourth Circuit to adopt a relaxed application of Rule 9(b) that would rely on inferring from an alleged “fraudulent scheme” that false claims essentially must have been presented to the government.  In support, the relator pointed to a Fifth Circuit decision, United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (5th Cir. 2009).   In Grubbs, the relator had alleged with detail that doctors fraudulently recorded medical services that were never performed, and the Fifth Circuit held that this satisfied Rule 9(b), even though the complaint did not provide specific allegations that those records caused the hospital’s billing system to present fraudulent clams to the government.  Id. at 192. Continue reading

Welcome to “Sorrellonia”!: WLF Seminar Assesses Off-Label Drug Speech Ruling

PodiumPic1Off-Label Speech After U.S. v. Caronia: Implications for Drug & Device Regulation and the First Amendment, a Washington Legal Foundation Web Seminar program, is now available for on-demand viewing.

Our program featured analysis and commentary from Coleen Klasmeier of the Sidley Austin law firm and WLF’s Chief Counsel, Richard Samp. Coleen and Rich make reference to a Powerpoint slide deck, which due to a technical problem wasn’t available to viewers during the program.  The slide deck can be downloaded here.

For her presentation, Coleen coined the term “Sorrellonia” because the U.S. Court of Appeals for the Second Circuit two-judge majority in Caronia became the first court to fully apply the holding and rationale of the U.S. Supreme Court’s 2011 Sorrell v. IMS Health opinion.

Coleen’s and Rich’s presentations drew upon their combined years of experience in dealing with FDA’s application of its off-label speech restrictions and the Justice Department’s prosecution of cases where criminal violations of those rules allegedly occurred.

While they both saw great promise in the opinion for greater freedom in the exchange of critical medical information, they also offered firm notes of caution that the ruling not be interpreted as a green light for businesses’ promotion of off-label uses. Great peril still exists in this area they warned, a fact that is all the more apparent today with the announcement of another nearly $1 billion Justice Department settlement with a pharmaceutical company.

Four Takeaways from Sixth Circuit Ruling on False Claims Act Liability

Cross-posted at WLF’s Forbes.com contributor site

Federal and state governments are clearly “feeling their oats” in the area of False Claims Act (FCA) enforcement. FCA enforcement has never been more lucrative, with recoveries doubling to $9 billion over the last year. A large bulk of that profit has come from settlements, meaning that prosecutors’ theories and tactics face no judicial scrutiny. Big profits + little oversight = aggressive pursuit of increasingly novel FCA claims.

Challenges to government’s FCA theories and positive outcomes are increasingly few and far between, so we will actively assess and promote them whenever they arise. The U.S. Court of Appeals for the Sixth Circuit’s October 5 U.S. ex rel Williams v. Renal Care Group opinion firmly rejected federal efforts to expand key aspects of the FCA and offers some important lessons for FCA targets.

Background. The Justice Department intervened in a FCA qui tam action against a kidney dialysis provider (RCG), which had a wholly-owned subsidiary to offer dialysis equipment for home care. RCG created this subsidiary to take advantage of a particular method of Medicare reimbursement. The qui tam relator, and subsequently DOJ, argued that RCG’s creation of a subsidiary was a knowingly false and fraudulent attempt to claim federal Medicare reimbursement. A district court agreed, granting DOJ’s summary judgment motion and imposing nearly $83 million in fines. On appeal, the Sixth Circuit reversed the lower court and remanded the case. The unanimous decision provides four important takeaways: Continue reading

Third and Seventh Circuits Reaffirm Limits on False Claims Act Qui Tam Suits

Last week, we wrote about two federal appellate court decisions regarding qui tam suits under the False Claims Act (FCA).  Those decisions 1) opened qui tam suits to government officials—even those tasked with investigating fraud, and 2) deemed underbidding on government contracts an actionable “false claim.”  Today, we focus on two other FCA/qui tam appellate court rulings, both of which concerned employee suits against former employers.  In both cases, the Third and Seventh Circuits rejected the would-be relator’s qui tam claims.  The outcomes are small victories for those who believe that the FCA has been expanded beyond its original purpose.

In U.S. ex rel. Repko v. Guthrie Clinic et al., the Third Circuit held that an individual who discloses FCA allegations to the government pursuant to a plea agreement cannot be said to have “voluntarily” disclosed those contentions.  Four years after leaving employment, Repko, a former employee of Guthrie, stole $2 million by forging the names of Guthrie employees on loan documents.  As part of his plea agreement with the government, Repko agreed to give the government information relating to the “unlawful activities of others.”  After providing the government with various allegations, Repko tried to bring a qui tam action based on that same information.

Because similar allegations had previously been disclosed on websites and in prior litigation, Repko could only bring a qui tam action if he was an “original source” of the information.  To be an original source, an individual must voluntarily disclose their information to the government.  Repko’s disclosure was far from voluntary: he provided the information “only after he pleaded guilty to bank fraud, faced a substantial sentence, and bargained for a lower sentence.” Thus, he did not qualify as an original source and his claims were dismissed. Continue reading

Spot the Conflict of Interest? Federal Courts Can’t in Expanding Qui Tam Suits

Two recent federal appellate court opinions have expanded the availability of qui tam suits under the False Claims Act (FCA), and created new incentives for abuse.  Briefly, the FCA’s qui tam provisions incentivize private parties, called relators, to bring litigation on behalf of the government by providing a relator with a share of the recovery.  Like private attorney general suits, this mechanism has been criticized for its abuse by politically unaccountable individuals seeking personal gain–monetary, political, or otherwise­–and the Act’s vast expansion beyond its original Civil War era purpose.

In United States ex rel. Little v. Shell Exploration & Production Co., the Fifth Circuit, addressing “who may sue,” determined that government employees–even those whose job is to investigate fraud for the government–can bring a private qui tam suit under the FCA.  The court dismissed the obvious conflict of interest problems as “extraneous” to the legal interpretation of the FCA, and found no textual basis for excluding government employees from the scope of “person[s]” eligible to bring a qui tam suits.

The court noted that in cases where allegations are first publicly disclosed by another party, government officials cannot bring suit because of the FCA’s “original source” rule.  Such sources must voluntarily disclose allegations to the government.  Government officials, of course, cannot be said to voluntarily disclose allegations to the government because, well, that’s their job. Continue reading

Judge Sanctions Lawyer, Law Firms for “Manufacturing” False Claims Act Suit

Abbott & Costello

Cross-posted by Forbes.com in WLF contributor site

In a March 26 opinion, U.S. District Court Judge Tanya Walton Pratt (S.D. Indiana) made plaintiffs’ lawyers pay for bringing a frivolous whistleblower suit under the federal False Claims Act (FCA). U.S. ex rel. Leveski v. ITT Educational Services.  Judge Pratt held three law firms and one lawyer jointly and severally responsible for paying nearly $395,000 of ITT’s attorney’s fees.

The decision is especially notable for three reasons: 1) The judge’s application of Federal Rule of Civil Procedure 11; 2) the context in which sanctions were imposed – a qui tam suit, one of the plaintiffs’ bar’s favorite tools; and 3) Judge Pratt’s strongly worded description of the sanctioned attorney’s lawsuit manufacturing tactics.

Ms. Leveski, who left ITT in 2006, had filed an employment suit against the company in 2005. A qui tam plaintiffs’ lawyer discovered the suit and contacted Ms. Leveski to discuss his belief that ITT was in violation of federal law for falsely certifying to the Department of Education that ITT’s compensation practices were proper. Ms. Leveski testified that prior to this conversation, she had no knowledge of or belief that ITT was defrauding the government.

After talking to the lawyer, and “armed with a newfound perspective on FCA claims,” as the court put it, Ms. Leveski filed suit in 2007. Continue reading