At Vorys, we have been defending False Claims Act cases for more than two decades. Although each case is different, and must be handled on its own merits, more than 90% of our prior cases have resulted in victory for our clients at trial; dismissal of FCA claims without discovery; or summary judgment.
We have defeated claims charging fraud on Medicare and Medicaid, on major defense aircraft projects, on the NASA Space Shuttle program, on Department of Energy environmental cleanup sites, and many more. All told, these claims have sought more than $30 billion from our clients without any recovery. And we have made sure that these victories stood up on appeal. We even changed the False Claims Act itself through our landmark United States Supreme Court victory in Allison Engine Co., et al. v. U.S. ex rel. Sanders, 553 U.S. 662, 128 S. Ct. 2123 (2008).
This record of success has earned us national recognition. We are known and respected by our adversaries in the Department of Justice and the relators’ bar, and we have been selected by Law 360 as one of the top False Claims Act and government contracts practice groups in the country.
In 2008, Congress amended the False Claims Act to apply to all individuals and companies receiving money or property that is to be spent or used on the government’s behalf or to advance a government program or interest, making a plethora of companies and industries targets for claims.
We have experience representing clients both large and small from all of the major industries that receive federal funds, such as the health care, pharmaceutical and financial services industries. We have also represented companies that do work on behalf of the Department of Defense and the Department of Energy.
Since 1987, defendants in the health care and pharmaceutical industry have paid over $24 billion in damages – nearly 70% of the total damages under the False Claims Act during that period. Since 2010, the Department of Justice has averaged over $2 billion per year in False Claims Act recoveries in this field. Any provider that bills Medicaid or Medicare could be a target of a False Claims Act claim.
Vorys has a wide variety of experience in the health care and pharmaceutical fields, including False Claims Act cases involving health care systems; hospitals; intermediaries and insurers; skilled nursing facilities; durable medical equipment providers; pharmaceutical companies; physicians and medical practices; in-home therapy providers; and academic medical centers. Vorys has handled an array of substantive issues arising out of these cases, including allegations of:
In addition, we work closely with Vorys’ health care team to conduct internal investigations related to allegations of fraud and abuse, advise clients on the advantages and disadvantages of voluntary disclosure of overpayments or other compliance issues, and assist clients in creating compliance programs designed to protect against fraud and abuse charges. For more information on when to contact Vorys and the ways we can assist your company, please see “How We Can Help.”
Since 1987, Department of Defense contractors have paid more than $5 billion in damages under the False Claims Act, with almost half of that amount coming in the last 10 years. From large defense contractors responsible for major weapons programs to small businesses tasked with a tiny piece of a defense procurement, the False Claims Act is an important concern to consider.
Vorys has experience handling all aspects of False Claims Act lawsuits arising from major Navy and Air Force weapons procurements, including motions, discovery, trial and appeals. Vorys has handled myriad substantive issues involving defense contracts, including allegations of:
For more information on when to contact Vorys and the ways we can assist your company, please see “How We Can Help.”
As the largest federal civilian contractor, the Department of Energy spends billions of dollars a year in contracts with private contractors. All of these contractors and subcontractors doing work for the Department of Energy – from Fortune 500 companies to small and disadvantaged businesses – are subject to the False Claims Act. False Claims Act cases against DOE contractors can cover a variety of subject matter, including improper labor recording, violations of environmental laws, violations of conflict of interest requirements, bid-rigging and misrepresentation regarding small and disadvantaged business status.
In addition to having handled False Claims Act issues arising from Department of Energy sites across the country, Vorys has particular experience in dealing with the novel issues unique to the DOE contracting world that tend to occur in False Claims Act litigation. For example, Vorys has substantial experience dealing with the following issues:
For more information on when to contact Vorys and the ways we can assist your company, please click “How We Can Help.”
One of the fastest growing areas of the False Claims Act is in the financial services field. The injection of a large amount of government money into the financial sector through the federal bailout programs known as the “Troubled Asset Recovery Program” (TARP) and the “Capital Purchase Program” (CPP) has made many large banks and financial institutions subject to the False Claims Act. In addition, there has been increasing scrutiny in recent years of traditional government programs like Federal Housing Administration-backed mortgages and municipal bonds.
In addition to its False Claims Act team, Vorys has extensive experience in Federal Housing Administration-insured financings and affordable housing transactions as well as counseling large banks in all facets of their operations. This experience makes Vorys particularly suited to assist financial institutions in proactive False Claims Act compliance as well as False Claims Act investigations and litigation. For more information on when to contact Vorys and the ways we can assist your company, please see “How We Can Help.”
The federal government spends money in a plethora of ways. In 2008, Congress amended the False Claims Act to apply to all individuals and companies receiving money or property that is to be spent or used on the government’s behalf or to advance a government program or interest. Companies that receive educational, housing, public works or other forms of funding from the federal government are subject to the False Claims Act. Even companies that receive government funds indirectly – such as serving as a contractor for other companies that contract directly with the government – can also be subject to the law.
Vorys has experience defending False Claims Act cases arising out of contracts with the Army Corps of Engineers, NASA and the General Services Administration. In addition, Vorys has extensive experience in assisting companies in developing a compliance program designed to protect against fraud and abuse charges. For more information on when to contact Vorys and the ways we can assist your company, please see “How We Can Help.”
Vorys lawyers strive to generate the best possible results for our False Claims Act clients. At Vorys:
We’ve successfully represented clients in appellate courts throughout the country, including the United States Supreme Court.
The best way to minimize exposure from a False Claims Act lawsuit is to prevent one.
Qui tam whistleblowers have common personality traits. They are rarely, if ever, “white knights” dutifully reporting injury to the federal treasury. More often than not, they have an axe to grind. Perhaps they were passed over for a promotion. Or a corporate reorganization reduced their perceived role or influence. Other whistleblowers simply hold the misguided belief that their particular view of a regulatory obligation or contractual provision is the only reasonable interpretation.
At Vorys, we have experience dealing with whistleblowers. By responding to internal complaints and conducting our own internal investigation of the issues, we have headed off numerous False Claims Act lawsuits before they were ever filed or unsealed. And even if the whistleblower is resolute about initiating and pursuing litigation, by conducting our own investigation, we get a head start in understanding the relevant documentation, formulating a defense, and explaining to the Department of Justice why it should not intervene in the lawsuit. If your organization has a suspected whistleblower, we can help.
Because of the unique nature of the False Claims Act — including the fact that lawsuits are filed under seal — companies often learn that they are targets of a qui tam complaint when they receive a government subpoena, prior even to being served with a copy of the complaint. In fact, a subpoena might be served years before the company is provided with the complaint.
We have extensive experience responding to subpoenas from the Department of Justice and other government agencies. In one recent case, we received a request for documents two years before the case was unsealed and a copy of the complaint was served upon our client. By the time the complaint was served, we had already interviewed witnesses, produced the relevant documents, and formed a defense position based on the anticipated allegations. This defense persuaded the Department of Justice to decline to intervene in the lawsuit and placed our client far ahead of the game when it was served with the complaint. We then filed a motion to dismiss the relator’s qui tam complaint — which alleged tens of millions of dollars in single damages — and the case was dismissed prior to discovery.
If your organization receives a subpoena, we can help.
After a False Claims Act case is unsealed and the complaint is served upon the defendant, the next step is motion practice and discovery. Vorys has extensive experience — and, more importantly, documented success — in these areas.
We have obtained the dismissals of numerous qui tam cases on motions to dismiss and without any discovery. These dismissals have been based on a range of grounds, from failures to plead False Claims Act claims with the required particularity, to failures to state claims for relief, to unique jurisdictional defenses available against relators under the False Claims Act. In one recent case, the court concluded that our client did nothing illegal even if the relator’s allegations were true — a remarkable conclusion at the pleading stage. We know the ins and outs of these defenses, and have implemented them successfully in our cases. If there’s a way to dispose of your case prior to engaging in costly discovery, we’ll strive to find it, and to allow your organization to enjoy the resulting cost savings.
If your case proceeds to discovery, we’ll have a plan. We have extensive experience using discovery to create the building blocks of a successful summary judgment motion. Having defended False Claims Act lawsuits for decades, we are skilled at assessing your case and pinpointing the weaknesses in the government’s or the relator’s theories of liability. We recently defended a Department of Energy contractor that was accused of mismanaging the cleanup of a former uranium processing facility and defrauding the United States of over $750 million. We built a record of testimony establishing that the Department of Energy officials who administered the contract were knowledgeable about all of the issues raised by the relator, that our client did not violate the contractual provisions in question, and that they could not have acted with the requisite mental state to violate the False Claims Act. Summary judgment was granted on all claims brought against our client.
At Vorys, we pride ourselves on our advocacy during motion practice and discovery, and it has made a difference for our clients.
Vorys has extensive experience handling whistleblower claims, including administrative charges and claims for retaliation under the False Claims Act. We have obtained numerous dismissals of these claims prior to discovery, defeated retaliation claims on summary judgment and settled these claims for true “nuisance value.” If your organization is facing a retaliation claim brought by a whistleblower, Vorys is prepared to mount a vigorous defense and will work diligently to avoid any additional exposure.
Many lawyers who defend False Claims Act lawsuits have never tried a False Claims Act case. Not so with Vorys. We have tried, and won, False Claims Act cases.
Because we’ve been there, we know what to expect, and how to build a case that will succeed at trial. Evaluating witnesses, taking and defending depositions, selecting expert witnesses — these and other litigation tasks are performed with an eye for trial. Whether your organization anticipates a trial or not, our experience makes a difference. Because both the government’s lawyers and relators’ counsel know we will try a case, they have been willing to settle on terms that are favorable to our clients.
Vorys has successfully represented False Claims Act defendants in Courts of Appeals throughout the country, including the United States Supreme Court. In the Allison Engine case Vorys obtained a directed verdict for our client in the United States District Court for the Southern District of Ohio. After trial, the relator appealed to the Sixth Circuit, and the United States Supreme Court subsequently heard the case. In a unanimous 9-0 decision, the Supreme Court ruled in our client’s favor, significantly restricting the scope of liability under the False Claims Act.
The False Claims Act is the United States Government’s primary means for attacking alleged fraud by entities and individuals involved in government contracts and programs. Companies confronting these claims face the highest stakes possible, including significant monetary penalties, treble damages, exclusion and debarment from government programs and even potential criminal sanctions.
Originally enacted during the Civil War, the False Claims Act was revitalized in 1986 by Congress, precipitating a wave of litigation that continues unabated. The law has been used to prosecute defense contractors, subcontractors, health care providers, pharmaceutical companies, financial institutions, education grant recipients and other entities that are compensated or reimbursed by the United States Government.
Under the qui tam provisions of the False Claims Act, whistleblowers (known as relators) bringing suit on behalf of the government are motivated by potentially significant financial rewards — including up to 30% of any recovery. A qui tam claim can trigger civil, administrative and criminal litigation, often simultaneously. Qui tam claims are filed and initially proceed “under seal” and without the knowledge of the defendant. After a period of investigation of the claims asserted by the relator, the government may decide to prosecute the case, or the whistleblower may continue the case on his own. With the possibility of treble damages, penalties of up to $11,000 per false claim, and potential suspension, exclusion or debarment, the consequences to a business can be can be catastrophic.
The simplest way to prevent False Claims Act liability is to comply with contractual and regulatory obligations. This compliance requires the implementation of quality systems and procedures that minimize your company’s exposure to risk, and proper enforcement and monitoring of those procedures. Key areas of focus for compliance include:
If you have received a subpoena from the Department of Justice, an investigation is already underway regarding your company’s practices — and a qui tam complaint may well have already been filed under seal. If a sealed qui tam case is pending, the Department of Justice, working with applicable government investigative entities (such as the Offices of the Inspector General of the Department of Health and Human Services or the Department of Defense, the Federal Bureau of Investigation, or the Defense Criminal Investigative Service) will investigate the claims levied against your company by the whistleblower. In conducting its investigation, the Department of Justice will likely seek to review your company’s documents, interview your company’s current and former employees, and hold meetings attended by Department of Justice attorneys and other government investigative agents.
After a period of investigation (which can last up to several years), the Department of Justice will decide whether to “intervene” in the case — that is, whether the United States will prosecute the lawsuit against you directly, or whether it will stand aside and simply permit the relator to pursue the case in the name of the government. In either event, your company must be prepared to defend the allegations in order to avoid the treble damages, penalties and other consequences posed by the False Claims Act.