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Thank you for your interest in the FCA Update Blog. We’ve relocated to McDermott’s Health & Life Sciences News blog. Visit us at healthlifesciencenews.com for future posts on for future posts on enforcement and compliance issues impacting the healthcare industry, False Claims Act litigation and more. For additional healthcare and white collar alerts, reports and webinar invitations from McDermott Will & Emery, please subscribe to our mailing lists.

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More Than a Decade at the Top; McDermott Earns 11th Chambers USA Band 1 Healthcare Practice National Ranking

We are pleased to announce that our Healthcare Group received a national Band 1 ranking for the eleventh year in a row in the 2020 edition of Chambers USA. After more than a decade at the top, we are once again the only one to rank Band 1 nationally. The Health team also earned Band 1 state-level rankings for its healthcare practices in California, Florida, Illinois, Massachusetts and Washington, DC. Additionally, the team also earned the national Spotlight Table ranking for the Privacy and Data Security: Healthcare category. In addition, nearly half of the Healthcare Industry Advisory group partners were individually ranked. Click here to view the full announcement.

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McDermott Named “Healthcare Team of the Year” by Chambers USA

International law firm McDermott Will & Emery was named 2019 “Healthcare Team of the Year” by Chambers USA at its awards ceremony celebrating legal excellence. This is the fourth time McDermott has received the honor – more than any other law firm in the awards’ history. The “Healthcare Team of the Year” award comes on the heels of McDermott’s industry-leading health practice garnering a national Band 1 ranking in the Healthcare category of the 2019 edition of Chambers USA for the 10th consecutive year – also the only firm to hold that distinction. “Our team is dedicated to helping health care companies push the boundaries of what it means to be innovative,” said McDermott Will & Emery Partner and International Head of McDermott’s Health Industry Advisory Group, Eric Zimmerman. “Receiving Chambers’ “Healthcare Team of the Year” award is a powerful testament to that work and to our passion for contributing to the health care and the legal industries at...

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McDermott’s Health Team Dominates with a Decade in Chambers USA’s Top Spot; Again Secures Only National Band 1 Ranking for 2019

We are pleased to share that Chambers USA has once again named McDermott Health the only firm to receive a Band 1 national ranking in health care. This year’s Band 1 placement marks 10 consecutive years of securing a top national ranking in this prestigious law firm directory, and the ninth year that we have held this position exclusively. The Health team also garnered Band 1 state-level rankings in California, Florida, Illinois, Massachusetts and Washington, DC—cities and states where we have substantial health law teams—and 29 McDermott health lawyers were ranked individually. Click here to view the full announcement. 

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Practice Reminder: Research Misconduct can be a Source of False Claims Act Liability

The October issue of the journal Science features a series of short articles highlighting a database containing a list of more than 18,000 scientific papers and conference abstracts that have been retracted over the past several decades. An analysis of the database shows that nearly 60 percent of retraction notices mentioned fraud or other kinds of misconduct (the balance of which were retracted because of errors, problems with reproducibility and other issues). The Science article, as well as a link to the searchable database, can be accessed here. Not only does research misconduct have significant potential for reputational harm–potentially career ending for the investigator, with ripple effects for the institution–but as described below, when the associated research is federally funded, such misconduct could have significant legal (and liability) implications. US health care organizations are used to warnings about the potential for exposure under the...

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Best of McDermott’s 2018 Health Care Litigation, Compliance & Investigations Forum

At a time when health care organizations are facing greater financial and reputational costs than ever before, more than 150 health care industry leaders, legal and compliance executives, and investors gathered for McDermott's Health Care Litigation, Compliance & Investigations Forum at the Ritz-Carlton in Chicago to discuss strategies for proactively managing and effectively responding to compliance risks, investigations and litigation. The event covered a wide range of issues, including fraud and abuse (such as False Claims Act and Stark Law matters), governance, cybersecurity, antitrust, white-collar, intellectual property, products liability and tax-exemption disputes. The event also featured a keynote address by Sylvia Mathews Burwell, Secretary of Health and Human Services from 2014 to 2017, on the foundations of the Affordable Care Act (ACA), the ramifications of the elimination of the individual mandate and the ACA’s prospects going forward. If...

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Southern District of Ohio Concludes that Regional Federal Reserve Banks are not “the Government” Under the FCA

On August 20, 2018, U.S. District Judge Algenon L. Marbley of the United States District Court for the Southern District of Ohio granted summary judgment in favor of The Brink’s Company (Brink’s), concluding that Regional Federal Reserve Banks (RFRB) are not “the Government” for purposes of the federal False Claims Act (FCA). The relator’s qui tam action was premised on an alleged penny-swapping scheme. Brink’s and other armored carriers regularly enter Coin Terminal Agreements (CTA) with RFRBs to transport and store coins. Pursuant to one such CTA, Brink’s received, weighed, tracked and stored the Federal Reserve Bank of Cleveland’s coins and provided similar services to other customers. Although Brink’s maintained electronic records of the coins in its inventory, it did not segregate physical coins by customer. The relator, a former Brink’s employee, alleged Brink’s violated its contract with the Federal Reserve Bank of Cleveland and defrauded the...

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District Court Rejects FCA Claim Based on “Substandard” Product

On March 13, 2018, the United States District Court for the Eastern District of Oklahoma dismissed U.S. ex rel. Montalvo v. Native American Servs. Corp. In this case, the relators alleged that the defendants performed substandard work at a US Army ammunition plant. Specifically, the relators alleged that the defendant oversaw a construction project in which a subcontractor was ordered to pour concrete into areas that contained tree roots and stems, which allegedly damaged the quality of the concrete. At summary judgment, the only evidence offered by the relator was an affidavit setting forth the facts above. The only disputed fact was whether the defendant knew about the tree roots and stems when ordering the subcontractor to pour the concrete. Regardless of that factual dispute, the court concluded that the plaintiff had failed to offer sufficient evidence that the defendant had knowingly caused the submission of false claims and granted summary judgment in...

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DOJ Announces Significant Shift Towards Affirmative Dismissal Of “Frivolous” Qui Tam Complaints: A New Exit Strategy For Defendants?

Attendees at the Health Care Compliance Association’s Health Care Enforcement Compliance Institute are reporting that, Michael Granston, Director, Civil Frauds, Commercial Litigation Branch of the Civil Division of the US Department of Justice (DOJ), announced a significant shift in policy for the DOJ in dealing with False Claims Act (FCA) complaints that are deemed “frivolous” on the merits. Acknowledging the burden on the resources of all parties caused by the litigation of frivolous FCA matters, Mr. Granston reportedly stated that, going forward, once it has determined that the allegations of a qui tam complaint lack merit, the DOJ will more aggressively exercise its discretion to move to dismiss the case rather than leave to the qui tam relator in every instance the option of whether to continue the litigation. Senior management—including boards of directors, in-house corporate counsel and chief compliance officers—should take notice of this new,...

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Breaking Down the 2017 DOJ and OIG Compliance Guides

Earlier this year, DOJ and OIG independently issued guides focused on evaluating compliance program effectiveness. The guides approach the topic from different perspectives but cover overlapping themes and work well in tandem. We reviewed the guides and compiled the reference tool to aid organization executives and boards of directors to measure compliance program effectiveness and, in turn, wisely invest resources. Read the full article "Breaking Down the 2017 DOJ and OIG Compliance Guides."

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