Philadelphia whistleblowers may contact our practice to discuss their potential False Claims Act (“FCA”) case.  Our practice’s unique capabilities ensure that such whistleblowers are well represented.  This has been proven by our experience and expertise in the area of both Qui Tam lawsuits and employment law.  Our specialized attorneys will confidentially discuss your potential case and guide you in how to bring the highly complex Qui Tam matter to ensure its greatest degree of success.  Private individuals, called relators, are the government’s best shot in protecting its money and ensuring the companies do not deceive its officials and deplete its coffers.

Going with a highly specialized and knowledgeable attorney can lessen the chances that a defendant’s attorney can move to dismiss an FCA complaint.  There are several defenses that can be made by entities or individuals facing an FCA complaint. Procedurally, a defendant can make a motion to dismiss to try to dispose of the case in the early stages of the lawsuit.  The most common grounds to dismiss FCA cases are the following five methods:

  • Failure to plead fraud with particularity under Federal Rule of Civil Procedure (FRCP) 9(b).
  • Failure to state a claim upon which relief can be granted under FRCP 12(b)(6).
  • The public disclosure bar.
  • The first-to-file bar.
  • The statute of limitations.

Failure to Plead Fraud with Particularity is the most common and effective motion to dismiss.  This motion is made under FRCP 9(b). The circuit courts, however, are split on this pleading standard for FCA complaints.  The Eighth Circuit recently upheld the heightened pleading standard of FRCP 9(b), requiring an FCA complaint to plead facts such as the time, place, and contents of the defendant’s false representations.  In addition, more facts must be provided surrounding the defendant’s fraudulent acts, including:

  • when the acts occurred;
  • who engaged in them; and
  • what was obtained as a result.

(U.S. ex rel. Dunn v. N. Mem’l Health Care, 739 F.3d 417, 420 (8th Cir. 2014).)

Other circuits have applied a more lenient standard. The US Supreme Court denied a petition and declined to decide whether FRCP 9(b) requires an FCA complaint to allege with particularity that specific false claims were presented to the government for payment (as required by the Fourth, Sixth, Eighth and Eleventh Circuits), or whether it is sufficient to allege particular details of the scheme to submit false claims and sufficient indicia that false claims were submitted (as held by the First, Fifth, Seventh, and Ninth Circuits) (see U.S. ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451 (4th Cir. 2013), cert. denied, 134 S. Ct. 1759 (2014)).  Therefore, it is essential that any potential Qui Tam relator contact an experienced attorney with local knowledge of the courts.

Failure to State a Claim

Defendants may also move to dismiss an FCA complaint under FRCP 12(b)(6) for failing to state a claim upon which relief can be granted, which is usually made in conjunction with an FRCP 9(b) motion. These motions are often filed in false certification cases. Common grounds for an FRCP 12(b)(6) motion include failure to adequately plead knowledge, falsity, or materiality.

For example, in a recent pharmaceutical items case, the defendant company failed to comply with certain Food and Drug Administration (“FDA”) reporting requirements for pharmaceuticals. (U.S. ex rel. Ge v. Takeda Pharmaceutical Co.)  The relator alleged that every claim for the drugs at issue (including for Medicare or Medicaid reimbursement) contained an implied representation of compliance with the FDA reporting requirements. However, the court dismissed the complaint because the relator failed to demonstrate that compliance with the reporting requirements was a material precondition to payment from the government. (2012 WL 5398564, at *5-6.)   It is vital that individuals seek out experienced and knowledgeable attorneys to review the facts, and plead the case properly.