Kirsten Mayer

Kirsten Mayer

Ropes & Gray LLP

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Fifth Circuit Limits Reverse False Claims Act Liability

On December 13, 2016, in United States ex rel Simoneaux v. E.I. DuPont de Nemours & Co., No. 16-30141, 2016 WL 7228813 (5th Cir. Dec. 13, 2016), the Fifth Circuit rejected an expansive construction of “reverse” false claims...more

2/17/2017 - Chemicals Dismissals DuPont Environmental Policies Environmental Violations EPA False Claims Act (FCA) FERA Jurisdiction Penalties Qui Tam Retaliation Reverse False Claims Summary Judgment Toxic Chemicals Toxic Substances Control Act (TSCA)

First Circuit Affirms Summary Judgment for Defendant, Rejecting the Use of Aggregate Data to Prove False Claims and Clarifying the...

The First Circuit has issued an opinion affirming a complete grant of summary judgment for Pfizer, Inc. in United States ex rel. Booker v. Pfizer Inc., No. 16-1805 (1st Cir. Jan. 30, 2017), a False Claims Act (“FCA”) lawsuit...more

2/7/2017 - Anti-Kickback Statute Anti-Retaliation Provisions False Claims Act (FCA) Medicaid Off-Label Promotion Pfizer Summary Judgment Whistleblowers

First Circuit Affirms Dismissal of FCA Off-Label Marketing Case for Failure to Meet 9(b) Particularity Requirement

In Lawton v. Takeda Pharmaceutical Co. et al., 842 F.3d 125 (1st Cir. 2016), the First Circuit affirmed the lower court’s dismissal of a False Claims Act (“FCA”) suit alleging a drug maker fraudulently marketed a product for...more

2/2/2017 - Dismissals Eli Lilly False Claims Act (FCA) Off-Label Promotion Pharmaceutical Industry Relators Rule 9(b) Takedown Notices

First Circuit Holds That, for Original Source Exception to the False Claims Act’s Public Disclosure Bar to Apply, Information...

On June 30, 2016, the First Circuit addressed the kinds of information that a relator must provide to qualify as an original source to avoid dismissal under the False Claims Act’s (“FCA”) public disclosure bar. In United...more

1/27/2017 - Caremark claim CVS False Claims Act (FCA) Medicare Part B Public Disclosure Relators

Third Circuit Holds eBay-Based Allegations Sufficient to Plead Reverse False Claim For Failure to Pay Import Duties

In October, the Third Circuit held in United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242 (3rd Cir. 2016), that the 2009 amendments to the False Claims Act (“FCA”) allowed a relator to...more

1/27/2017 - Country of Origin Duties eBay Failure To State A Claim False Claims Act (FCA) Imports Qui Tam Tariff Act of 1930

Fourth Circuit Holds that the False Claims Act Does Not Expand Common Law Corporate Successor Liability

In United States ex rel. Bunk v. Gov’t Logistics N.V., 2016 U.S. App. LEXIS 20481, 842 F.3d 261 (4th Cir. 2016), the Fourth Circuit addressed a successor corporation’s liability for a predecessor corporation’s liabilities...more

1/27/2017 - Corporate Counsel Criminal Conspiracy DOJ False Claims Act (FCA) Federal Contractors Qui Tam Successor Liability

Supreme Court Declines to Resolve False Claims Act Public Disclosure Bar Circuit Split

On October 3, 2016, the Supreme Court denied certiorari in Cause of Action v. Chicago Transit Authority, allowing the circuit split regarding what it means for information to be in the “public domain” under the False Claims...more

1/26/2017 - Dismissals False Claims Act (FCA) Petition for Writ of Certiorari Public Disclosure Public Domain Transit Authority

Sixth Circuit Affirms that Broad Public Disclosure of Misconduct May Bar More Specific Allegations of Fraud Under False Claims...

In U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, 816 F.3d 428 (2016), the Sixth Circuit affirmed the dismissal of a False Claims Act (“FCA”) suit against U.S. Bank based on the FCA’s public disclosure...more

1/26/2017 - Dismissals False Claims Act (FCA) FHA Loans HUD Petition for Writ of Certiorari Public Disclosure Relators US Bank Wrongful Foreclosures

Second Circuit Affirms Dismissal of Mortgage-Backed Securities New York State False Claims Act Case Against Wells Fargo

In New York ex rel. Jacobson v. Wells Fargo National Bank, N.A., 824 F.3d 308 (2d Cir. 2016), the Second Circuit affirmed the dismissal of a relator’s tax fraud-based claim against Wells Fargo under the New York False Claims...more

1/26/2017 - Dismissals False Claims Act (FCA) Internal Revenue Code (IRC) Jurisdiction Relators REMIC Subprime Mortgages Tax Fraud Wells Fargo

Tenth Circuit Affirms False Claims Act Summary Judgment on Scienter Grounds

In United States ex rel. Smith v. The Boeing Co., 825 F.3d 1138 (10th Cir. 2016), the Tenth Circuit affirmed the district court’s grant of summary judgment on scienter grounds, finding that a difference of opinion as to two...more

1/26/2017 - Boeing Federal Aviation Administration (FAA) Federal Contractors Qui Tam Scienter Summary Judgment

Seventh Circuit Applies Escobar Standard to Once Again Reject False Claims Act Liability Based on Implied False Certification...

On October 24, 2016, the Seventh Circuit applied the standard announced by the Supreme Court in United Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), for False Claims Act (“FCA”) liability...more

1/6/2017 - Department of Education False Claims Act (FCA) False Implied Certification Theory Materiality Remand Title IV United States ex rel Nelson v Sanford-Brown Universal Health Services Inc v United States ex rel Escobar

Seventh Circuit Allows FCA Claim Based on Inferences of Fraud to Proceed; Claims Based Only on Personal Opinions Dismissed

In United States ex rel. Presser v. Acacia Mental Health Clinic, LLC, 836 F.3d 770 (7th Cir. 2016), the Seventh Circuit addressed Rule 9(b)’s application to a False Claims Act (“FCA”) complaint, elaborating on when it...more

12/29/2016 - Evidence False Claims Act (FCA) Health Care Providers Motion to Dismiss Pleading Standards Rule 9(b)

Supreme Court Rejects Dismissal Requirement for FCA Seal Violations

In State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, the United States Supreme Court rejected State Farm’s argument that a relator’s violation of the automatic seal in a False Claims Act (“FCA”) case mandates...more

12/28/2016 - Dismissals False Claims Act (FCA) Flood Insurance Relators SCOTUS Sealed Records State Farm Fire and Casualty Co v United States ex rel Rigsby

Ninth Circuit Rejects FCA Suit Alleging Medical Device Inaccuracies

In United States ex rel. Ruhe v. Masimo Corp., 640 Fed. App’x 666 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit affirmed a grant of summary judgment for defendant Masimo Corporation, a medical device...more

12/20/2016 - Appeals False Claims Act (FCA) FDA Manufacturers Medical Devices Summary Judgment

Eighth Circuit Considers Materiality Under the FCA Following the Supreme Court’s Escobar Decision

On October 19, 2016, the Eighth Circuit issued one of the first post-Escobar opinions addressing materiality under the False Claims Act (“FCA”). In United States ex rel. Miller v. Weston Educational, Inc, No. 14-1760, 2016 WL...more

12/8/2016 - Appeals Colleges Department of Education False Claims Act (FCA) False Statements Federal Student Loans Materiality Recordkeeping Requirements Summary Judgment Universal Health Services Inc v United States ex rel Escobar

Eighth Circuit Holds that a Reasonable Interpretation of an Ambiguous Law Does Not Give Rise to FCA Liability

On August 8, 2016, the Eighth Circuit, in Olson v. Fairview Health Services of Minnesota, affirmed the dismissal of a False Claims Act (“FCA”) suit alleging that the University of Minnesota Medical Center (“UMMC”)...more

12/8/2016 - Children's Hospital Dismissals False Claims Act (FCA) Hospitals Medicaid

Eighth Circuit Affirms that an Objectively Reasonable Interpretation of an Ambiguous Regulation Defeats Liability Under the False...

In United States ex rel. Donegan v. Anesthesia Associates of Kansas City, P.C., 833 F.3d 874 (8th Cir. 2016), the Eighth Circuit affirmed that a defendant cannot be liable under the False Claims Act (“FCA”) for claims for...more

12/8/2016 - False Claims Act (FCA) Medicare Objective Standard Relators Summary Judgment

Eighth Circuit Affirms that Retaliation Under False Claims Act Requires Showing that Retaliation Was Motivated Solely by...

On May 20, 2016, the Eighth Circuit affirmed the District Court’s grant of summary judgment to defendant on Plaintiff’s False Claims Act (“FCA”) retaliation claim against his former employer. In Elkharwily v. Mayo Holding...more

12/8/2016 - False Claims Act (FCA) Mayo Clinic Protected Activity Retaliation Standard of Care Summary Judgment Wrongful Termination

In Win for Financial Services Industry, Second Circuit Limits Use of FCA to Enforce Banking Regulations

In United States ex rel. Bishop v. Wells Fargo & Co., 823 F.3d 35 (2d Cir. 2016), the Second Circuit rejected an attempt to use the False Claims Act (“FCA”) as an enforcement mechanism for banking regulations in the lead-up...more

12/8/2016 - Accounting Fraud Dismissals False Claims Act (FCA) False Statements False-Certification of Conformance Financial Crisis Financial Regulatory Reform Internal Controls Universal Health Services Inc v United States ex rel Escobar Wachovia Wells Fargo World Bank

Eighth Circuit Dismisses Interlocutory FCA Appeal for Lack of Jurisdiction

In this April 2016 decision, the Eighth Circuit held that it lacked jurisdiction to consider the appeal of a two-state agency seeking review of a denial of its motion for summary judgment. Below the two-state agency had...more

12/8/2016 - Appeals Eleventh Amendment False Claims Act (FCA) Jurisdiction Motion for Summary Judgment Public Entities Public Transit

Fourth Circuit Clarifies Applicability of FCA Public Disclosure Bar to Amended Complaints

In one of several decisions issued during 2016 addressing the False Claims Act’s Public Disclosure Bar, 31 U.S.C. § 3730(e)(4), the Fourth Circuit in United States ex rel. Lyle Beauchamp v. Academi Training Center, LLC held...more

12/7/2016 - Amended Complaints False Claims Act (FCA) Pleadings Public Disclosure Relators Rockwell International US Department of State

Seventh Circuit Rejects False Claims Act and Retaliation Claims Premised on Purported Breach of Contract

On October 11, 2016, the Seventh Circuit confirmed that there is no violation of the False Claims Act (“FCA”) where the defendant allegedly violated a self-imposed requirement that was not mandated by its contract with the...more

12/1/2016 - Anti-Retaliation Provisions Breach of Contract False Claims Act (FCA) Federal Contractors Fluor Protected Concerted Activity Whistleblower Protection Policies

Fifth Circuit Affirms False Claims Act’s Anti-Retaliation Provision Cannot Be Used Against Individuals Who Did Not Employ...

On July 1, 2016, the Fifth Circuit affirmed the district Court’s dismissal of Plaintiff’s False Claims Act (“FCA”) retaliation claim against all individual defendants in the case. In Howell v. Town of Ball, 827 F.3d 515, 521...more

10/19/2016 - Corporate Counsel False Claims Act (FCA) FEMA First Amendment Indictments Municipalities Retaliation Reversal

Fifth Circuit Holds Non-Employee Agent Is Protected by False Claims Act’s Retaliation Provision

On March 9, 2016, the Fifth Circuit issued an important ruling addressing the type of relationship that is required between a relator and a defendant for the relator to have a right to bring a retaliation claim against the...more

10/6/2016 - Employee Definition False Claims Act (FCA) Relators Retaliation

Sixth Circuit Affirms Dismissal of False Claims Act Case Based on HITECH Data Breach

In United States ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399 (6th Cir. 2016), the Sixth Circuit affirmed the lower court’s dismissal of a False Claims Act (“FCA”) suit based on a data breach involving electronic...more

10/5/2016 - Corporate Counsel Data Breach Discrimination Electronic Health Record Incentives False Claims Act (FCA) HIPAA HITECH Kettering Health Network

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