On Nov. 29, 2018, Deputy Attorney General Rod J. Rosenstein announced several amendments to policies on individual accountability set forth in the 2015 Yates Memo. As a result, companies facing FCA actions—especially defendants in health care cases—should consider following three strategy tips:  (1) Establish clear benchmarks for cooperation.  (2) Advocate for individual releases.  And (3) Emphasize that litigation costs outweigh the potential recovery in appropriate cases.

To learn more please read this Bloomberg BNA article written by Partner William S.W. Chang and Associate Spencer Churchill.


The Health Care Group’s newest partners, William S.W. Chang and Laura M. Kidd Cordova, along with Counsel Stephanie D. Willis, have authored an Alert about the 21st Health Care Fraud and Abuse Control Program (HCFAC) annual report released last Friday.  The HCFAC report is a joint effort of the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) that describes the expenditures, results, and enforcement actions of the previous fiscal year.  The authors note that compared to FY 2016, other than expanded efforts to combat the opioid crisis, enforcement remained more or less consistent with prior trends.  In monetary terms, HCFAC spending slightly increased, while overall monetary recovery and returns on investment in fraud prevention efforts significantly decreased.  Interestingly, however, the proportion of overall recoveries resulting from HHS auditing activities considerably increased.

Read the rest of the Alert’s analysis of the HCFAC report and register for our webinar next Tuesday, April 17th.  During the webinar, listeners will hear Will and Stephanie, who were attorneys employed by DOJ and the HHS Office of the Inspector General (HHS-OIG), respectively, give their insights about the significance of the report for health care companies and the health care industry.


Last week, in a case that will have a significant impact on future False Claims Act (FCA) suits against health care entities, the Supreme Court granted certiorari in Universal Health Services, Inc. v. United States ex rel. Escobar.  By agreeing to hear the case, the Court will resolve the circuit split over the so-called “implied certification” theory of legal falsity under the FCA.  For more information about the circuit split, read the post co-authored by Jason Crawford and Jared Engelking on the Whistleblower Watch blog.

In short, FCA cases based on the “implied certification” theory allege that claims submitted by the defendant are “false” or “fraudulent” because of noncompliance with a statutory, regulatory, or contractual provision even though no express certification of compliance has been made.  While cases based on this theory often include an allegation that compliance is a condition of payment not all courts require it. Of note, both whistleblowers and the government have increasingly relied on this theory to prosecute health care FCA cases alleging noncompliance with the Physician Self-Referral (“Stark”) Law, which is a strict liability statute that bans physicians in prohibited financial relationships from submitting claims to Medicare and Medicaid for reimbursement.  The Court’s decision on whether and to what extent implied certification is viable will likely prove a turning point in the use of the FCA and eliminate diverging outcomes for attaching FCA liability under factually identical circumstances dependent on where the case is filed.  We will monitor the case and provide more insights in future posts. 


Over 40 percent of money recovered by the Department of Justice from False Claims Act (FCA) suits involve fraud against federal health care programs. More importantly, nearly 89 percent of all new FCA matters in 2014 originated qui tam lawsuits brought by whistleblowers.

Developments in FCA jurisprudence have innumerable consequences for the health care industry, and other and the industry is also open to constant legal actions brought by whistleblowers to other federal agencies such as the Securities and Exchange Commission. For a deep dive into legal developments stemming from preventing and defending whistleblower actions, check out the firm’s new “Whistleblower Watch” blog.

Some recent posts that relate specifically to health care or life science defendants are:

Sophisticated motion practice and pre-trial strategies are key to limiting liability under the FCA and other whistleblower-based actions. The firm’s Health Care Group regularly collaborates with the litigators featured on the Whistleblower Watch website, so stay tuned for cross-posts that highlight the expertise of the practitioners in this ever-important area of law.