Library FCA

False Claims Act “Knowingly” Means What It Says

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Putting the Subjectivity Back in False Claims

The False Claims Act is a powerful tool used by the government and private citizens to ferret out and prosecute false claims. It is also an extraordinarily attractive device for whistleblowers who may claim they are the “original source” of information because it may lead to multi-million-dollar settlements and triple damages. The two major categories of false claims the government investigates are: (1) false claims in the healthcare space and (2) false claims in the government contractor space, especially defense contractors. Within that second category of false claims, the government, and its whistleblowers are targeting PPP fraud cases in various sectors.

Supreme Court Case- Returning to Subjectivity

Salivating whistleblowers aside, in a very recent False Claims Act Supreme Court Decision, the Supreme Court reversed a Seventh Circuit opinion that was favorable to the defense bar, but (and it’s a big “but”) the Supreme Court also made it very clear that the plain text of the Act and the word “knowingly” must be viewed through a subjective lens when district courts consider what amounts to false claims. It is not what an objective person should or would know, it is what the defendant subjectively understood or knew at the time of the supposed false claims to a government program. The reason that the government prevailed on appeal, (and why the government is now celebrating) is because the Seventh Circuit opinion turned traditional concepts of knowledge upside down when you consider false claims. And, as Justice Thomas reinforced:

What matters for an FCA case is whether the defendant knew the claim was false. Thus, if respondents correctly interpreted the relevant phrase and believed their claims were false, then they could have known their claims were false.

Simple. If you know what you are doing is wrong or understand (or have been told) that what you are doing is wrong then you cannot, in hindsight, try to then create an objectively reasonable interpretation of the defense after-the-fact. That makes no sense to me.

Greatest Hits from The Opinion

The opinion starts with a simple, straightforward concept:

The False Claims Act (FCA) imposes liability on anyone who “knowingly” submits a “false” claim to the Government. 31 U. S. C. §3729(a). In some cases, that rule is straightforward: If a law authorized payment of $100 for “each” medical test, and a doctor knows that he did five tests but submits a claim for ten, then he has knowingly submitted a false claim. But sometimes the rule is less clear. If a law authorized payment for only “customary” medical tests, some doctors might be confused when it came time for billing. And, while some doctors might honestly mistake what that term means, others might correctly understand whatever “customary” meant in this context—and submit claims that were inaccurate anyway.

  • Page 8: “The FCA’s scienter element refers to respondents’ knowledge and subjective beliefs—not to what an objectively reasonable person may have known or believed.”
  • Page 10: “On their face and at common law, the FCA’s standards focus primarily on what respondents thought and believed. First, the term “actual knowledge” refers to whether a person is “aware of” information. Second, the term “deliberate ignorance” encompasses defendants who are aware of a substantial risk that their statements are false, but intentionally avoid taking steps to confirm the statement’s truth or falsity. And, third, the term “reckless disregard” similarly captures defendants who are conscious of a substantial and unjustifiable risk that their claims are false, but submit the claims anyway. Again, that tracks traditional common-law fraud, which ordinarily “depends on a subjective test” and the defendant’s “culpable state of mind.” What typically matters at common law is whether the defendant made the false statement “without belief in its truth or recklessly, careless of whether it is true or false.” (all citations omitted/cleaned up)
  • Pages 11-12: We assume (as the District Court ruled in SuperValu’s case) that respondents’ “usual and customary” prices were their discounted ones; if so, it might have been a forgivable mistake if respondents had honestly read the phrase as referring to retail prices, not discounted prices. But the Seventh Circuit did not hold that respondents made an honest mistake; it held that, because other people might make an honest mistake, defendants’ subjective beliefs became irrelevant to their scienter.”
  • Pages 12-13: To illustrate why consider a hypothetical driver who sees a road sign that says “Drive Only Reasonable Speeds.” That driver, without any more information, might have no way of knowing what speeds are reasonable and what speeds are too fast. But then assume that the same driver was informed earlier in the day by a police officer that speeds over 50 mph are unreasonable and then noticed that all the other cars around him are going only 48 mph. In that case, the driver might know that “Reasonable Speeds” are anything under 50 mph; or, at the least, he might be aware of an unjustifiably high risk that anything over 50 mph is unreasonable. Indeed, if the same police officer later pulled the driver over, we imagine that he would be hard pressed to argue that some other person might have understood the sign to allow driving at 80 mph.

Final Takeaways

Each of these significant passages from the opinion more than amply demonstrate that proving scienter under the False Claims Act is not automatic. The opinion may not have any practical impact on motions to dismiss and the application of the stringent 9(b) pleading standard, but it should make a difference at the summary judgment phase. And, it should make an even bigger difference during a trial. Defense lawyers would be well-advised to incorporate the critical portions of the opinion into jury instructions and even theory of the defense jury instructions and then use those same instructions in closing arguments to convey their message to the jury.

Mr. Feldman and the Firm defend health care providers and organizations and government contractors against false claims allegations in False Claims Act investigations and civil investigations.

Medical background, Close up stethoscope on glass table with reflection and copy space, monotone, soft background.

Andrew Feldman and Marissel Descalzo Obtain A Judgment of Acquittal in Fraud Trial

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Andrew S. Feldman from the Firm and Marissel Descalzo, a partner at Tache Bronis & Descalzo, P.A. obtained a rare Rule 29 judgment of acquittal on the one major count at trial alleging that the client participated in a wire fraud conspiracy. The wire fraud conspiracy related entirely to the client’s supposed involvement in a fraudulent clinical trial for Asthma drugs sponsored by GlaxoSmith Kline (GSK). From 2014 until August of 2015, the client was a research coordinator for a company in Miami which performed clinical trials sponsored by multi-national companies. In 2017, GSK and the FDA’s Office of Criminal Investigation spearheaded an investigation into an alleged fraudulent clinical trial at the Miami research company. The investigation also focused intensely on the clinical investigator (a licensed physician) and her medical practice from which many of the study participants had originated. During the investigation, the FDA unearthed irregularities with respect to that clinical trial. The FDA and DOJ were then able to approach and obtain cooperating witnesses, and, ultimately, filed charges against five defendants. The Department of Justice inked plea agreements with four co-defendants. The client was the lone defendant who exercised her Sixth Amendment right to a jury trial.  

The jury trial lasted approximately two weeks and the government called 12 witnesses, including FDA agents and expert witnesses from around the United States. The government also called two cooperating defendants to testify against the client.  

The Firm is very happy with the victory for the client. The Firm also thanks Mrs. Descalzo for her incredible performance during trial. The Firm represents clients in complex fraud trials including clinical trial fraud cases investigated by the Food Drug Administration (FDA). The Firm looks forward to representing clients in FDA criminal cases or cases involving allegations of fraud related to the performance of a clinical trial.  

 

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Pensacola Pharmacy Owner Receives Favorable Sentence After Trial

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In an upside-down world where prosecutorial recommendations for Draconian “low end” Guidelines sentences have become acceptable outcomes in many districts, it was encouraging when the U.S. district court in Pensacola Florida granted a 54 month downward variance from a 78 month “low end” sentence request from the government. What was even more encouraging was that the court imposed that sentence after the client had exercised his Sixth Amendment right to trial by jury.

The client was an owner of a compounding pharmacy in Pensacola who had recently begun the pharmacy. A marketer with an impressive history in medical device sales and with established relationships with a cadre of highly regarded surgeons had approached the client about marketing the pharmacy’s specialty compounded medications to those surgeons. Evidence at trial revealed that, prior to ever meeting the client, the marketer had enlisted the physician assistant at one of the surgeon’s offices to forge the surgeon’s signature on prescriptions for compounded medications that were dispended by a separate pharmacy outside of Pensacola. Evidence at trial showed that marketer also paid the physician assistant kickbacks for forging those prescriptions and that the scheme continued at the client’s pharmacy. Nonetheless, the government presented no evidence that the client had any knowledge of the forged prescriptions or that the client had any knowledge that the marketer was paying the physician assistant kickbacks. Instead, at trial the governments theory of the healthcare fraud was that our client, through his pharmacy, dispensed compounded medications even though he knew that the surgeon had not physically seen these patients, and therefore, any compounded medications ordered by that physician were derived from an “illegitimate doctor patient relationship” which constituted participation in the previously initiated health care fraud conspiracy. Unfortunately (although, respectfully), on this novel theory, the jury rendered verdicts of guilty.

Despite the verdict, at sentencing, the court varied downward significantly. Among other reasons, the court concluded that the client was not a participant in the forged prescriptions component of the scheme and that there was no evidence that the client (even as the owner of the pharmacy) recruited anyone else into the scheme. Further, the court emphasized that the pharmacy continued a legitimate business and dispensed thousands of valid prescriptions to patients during the period of the charged conspiracy and for several years, long after the conspiracy ended. And, the court found that the conduct for which the client was convicted constituted aberrant conduct committed by an otherwise law-abiding citizen. After hearing testimony from the CPA for the pharmacy and its related entities, the court also noted that the client’s personal gain from the convicted conduct paled in comparison to the enormous loss amount that the PSI had attributed to the client at sentencing. Finally, the court found that the client’s character, history of good deeds, generosity, and civic contributions supported a variance.

There are at least two significant takeaways from the result in this case. First, notwithstanding the guilty verdict, this is the rare case where the client (in our view) would have potentially received a much higher sentence had he not proceeded to trial and had simply pled guilty. The trial and the sentencing were opportunities to vigorously represent the client, to expose the weaknesses in the government’s theory of the case, and to place each of the relevant facts (not just what the PSI says at a stipulated hearing) before the jury and the judge. Second, where applicable, in fraud cases, it is incumbent upon attorneys to underscore the substantial discrepancies between the loss amount and a client’s gain. To do so, attorneys should seriously consider introducing a CPA or other financial professional familiar with the client’s books and records.

The client was represented at trial by the Firm and all-star Pensacola attorney John Beroset. This was the second time in less than 6 months that the Firm and John Beroset achieved what we believe were favorable results for our clients.

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Feldman Firm Obtains Declination of Prosecution in Government Contractor Fraud Case

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The Firm, in coordination with attorney John Beroset, recently obtained an official declination of prosecution in an investigation into government contractor fraud related to contracts with the Air Force.

The government contract fraud investigation was focused on, more broadly, rooting out fraud perpetrated by contractors conducting business with the Air Force. In this instance, the client’s contract contemplated the performance of services, with the assistance of a very capable sub-contractor at the Air Force base following the devastation caused by Hurricane Michael in the Panhandle.

After the contract was performed and completed, the client was approached by law enforcement twice in connection with the government contractor fraud investigation, including by special agents from the Air Force and the Small Business Administration (SBA). And, when they did, the client agreed to submit to lengthy interviews — without an attorney — with the federal agents related to the government contractor fraud investigation.

At a certain point, a felony charge seemed unavoidable.

Nonetheless, after the client retained the Firm and Mr. Beroset, and after coordinating with counsel for the sub-contractor and submitting our version of the events including the salient facts and the relevant legal authorities to the prosecutor, the government took the unusual (sadly) and eminently reasonable step of deciding not to move forward with any recommendation for criminal prosecution.

The Firm regularly represents corporate executives, health care professionals, contractors, and businesses ensnared in fraud investigations.