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The Whistleblower Blog

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Presented by Hodgson Russ, the Whistleblower Blog is written by a team of lawyers experienced in successfully guiding both whistleblowers and companies accused by whistleblowers of wrongdoing through the False Claims Act process.

Photo of The Whistleblower Blog Daniel C. Oliverio
Chairman Emeritus; False Claims Act & Whistleblower Representation and Business Crimes & Criminal Investigations Practices Leader
doliverio@hodgsonruss.com
716.848.1433
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In addition to serving as Chairman Emeritus of the Firm and leader of Hodgson Russ's False Claims Act & Whistleblower Representation and Business Crimes, Regulatory …

Showing 6 posts by Daniel C. Oliverio.

DOJ Now Requires Certain Factors Be Met Before Pursuing Off-Label Cases

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Over the years, the Department of Justice has vigorously pursued off-label sales of pharmaceuticals by some of the largest pharma companies in the world. By statute, pharma companies cannot market a product “off-label,” while a physician may prescribe off-label, if he or she believes a particular medicine is effective. This rule created a tension between pharma and physicians.

Sharing Agreements, Consolidation, and Relators’ Share

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More and more, we are seeing multiple and separate qui tam cases filed across various districts that, in part, contain overlapping claims, allege common sets of facts, or supplement each other in a way that, if combined, results in much stronger complaint. The problem is simple: absent consolidation and a sharing agreement, the government has a mess on its hands when trying to determine who is the “first” relator for purposes of the relators’ share.

Sharing Agreements Beat First-Relator Fights

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As cases become more complex and multiple allegations arise, it is more and more frequently the case that multiple relators will file complaints in different districts covering, at least for the most part, common subject matter. Rarely, however, in these types of cases, can one make a definitive judgment about whether the allegations overlap, either in whole or in part, are identical, or are distinctly separate. U.S. attorneys want to be able to consolidate cases and use all of the allegations in a single False Claims Act prosecution. So what to do about the relators?

Amendments to False Claims Act May Affect “Original Source” Issues

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The False Claims Act amendments found in the Fraud Recovery Enforcement Act of 2009 appear to broaden the “original source” rules by eliminating the requirement that a person must have “direct” knowledge of information underlying False Claims Act allegations.

Parallel Prosecutions: Good or Bad in a Whistleblower Case?

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A common scenario: a whistleblower files a solid False Claims Act complaint with an ample disclosure. The government takes the disclosure and complaint, does some preliminary investigation, and opens a criminal file and grand jury investigation. The civil False Claims Act goes dormant and the Federal Rule of Criminal Procedure 6(e) prohibits the U.S. attorney from discussing any grand jury evidence with the whistleblower or whistleblower’s counsel. De facto, the government has taken over the case. That can only be good. Simply, if there is a criminal conviction by plea or after trial, and the factual basis for the conviction is the same as that alleged in the complaint, the case is a winner. And if there is a plea, global settlements are the rule rather than the exception. So the relator gets paid at the same time the criminal plea is entered.

The False Claims Act

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The False Claims Act, first passed by congress at the time of the Civil War in response to government fraud in the purchase of war supplies, really hasn’t changed much over the years. While the False Claims Act is now directed toward substantive areas like health care, pharmaceuticals, and sophisticated government transportation contracts, the claims are no different than back when. Simply, unscrupulous persons and entities attempt to defraud the government (and the taxpayers) by selling inferior goods, by charging more than what has been agreed to by the government, and by providing goods or services that are not as represented in agreements with the government. The dramatic increase in government programs (Medicare, Medicaid, HUD, HHS) has resulted in a commensurate number of ways for the government to be defrauded within the scope of the False Claims Act. So while the modern claims under the act involve things like off-label sales of prescription pharmaceuticals, overcharges under the Medicare program, and phony claims for the transportation of military parts, that is the only difference from those that sold inferior gun powder, blended blankets instead of wool, and mules instead of horses to the Union army and the government.

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Hodgson Russ is one of only a few major law firms that represents both whistleblowers and companies accused by whistleblowers of wrongdoing. This unusual perspective means we are exceptionally well positioned to advise whistleblowers about potential claims.

We are not a "whistleblower mill" that pays little attention to the needs of its clients or the factual nuances of complex cases. Rather, we are a team of highly experienced lawyers that selects only the best cases, affording us the time and focus to become fully immersed in the factual and legal details necessary to bring cases to successful resolution.