Kirsten Mayer

Kirsten Mayer

Ropes & Gray LLP

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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

First Circuit Affirms Stringent Rule 9(b) Particularity Requirement in False Claims Act Cases

On June 17, 2016, the First Circuit issued an opinion addressing, among other things, the particularity requirement that applies in False Claims Act (“FCA”) cases where the defendants are not alleged to have directly...more

10/3/2016 - False Claims Act (FCA) Fraud Genentech Hoffman LaRoche Novartis Off-Label Promotion Qui Tam Rule 9(b) Third-Party

Ninth Circuit Holds that Fannie Mae and Freddie Mac Are Not Agents of the Government Under the False Claims Act

In United States ex rel. Adams v. Aurora Loan Servs., 813 F.3d 1259 (9th Cir. 2016), the Ninth Circuit affirmed the district court’s dismissal of Relators False Claims Act (“FCA”) complaint, holding that the Federal National...more

9/30/2016 - Banking Sector False Claims Act (FCA) Fannie Mae Federal Contractors FHFA Financial Services Industry Freddie Mac GSE Housing Market Mortgage Lenders Mortgage Servicers Mortgages Motion to Dismiss Popular

First Circuit Adopts “Arm of the State” Test to Affirm Dismissal of FCA Complaint

In January 2016 in a matter of first impression, the First Circuit held that the University of Massachusetts Medical School is a state agency, and therefore not a “person” subject to liability in a False Claims Act (“FCA”)...more

9/9/2016 - Dismissals Eleventh Amendment False Claims Act (FCA) First Impression Medicaid Medical School State Action Immunity State Agencies

Fourth Circuit Holds False Claims Act Relators Cannot Use Facts Learned by Their Attorney in a Previous Case to Defeat the FCA’s...

Earlier this year, the Fourth Circuit held in United States ex rel. May v. Purdue Pharma L.P., 811 F.3d 636 (2016) that the a complaint that is “based on” relators’ attorney’s work on a prior dismissed FCA action triggers the...more

9/2/2016 - False Claims Act (FCA) Marketing Pharmaceutical Industry Public Disclosure Res Judicata

Tenth Circuit Holds that the False Claims Act’s Materiality Requirement Has Teeth in Granting Summary Judgment to Government...

On April 22, 2016, in a decision issued before the Supreme Court’s Escobar opinion, the Tenth Circuit addressed the question of what a relator must show to meet the materiality requirement in an implied false...more

8/15/2016 - Afghanistan Black and Veatch False Claims Act (FCA) False Implied Certification Theory Federal Contractors Forgery Materiality Relators Summary Judgment Universal Health Services Inc v United States ex rel Escobar USAID Visas

First Circuit Limits Inference of Pretext for FCA Retaliation Claims

On February 22, 2016, the First Circuit affirmed a grant of summary judgment for pharmaceutical maker GlaxoSmithKline (“GSK”) on a False Claims Act retaliation claim by a former employee. In United States ex rel. Hamrick v....more

8/1/2016 - Burden of Proof False Claims Act (FCA) GlaxoSmithKline Hiring & Firing Qui Tam Retaliation Summary Judgment

Seventh Circuit Clarifies Retroactivity of Part of 2010 Amended Definition of “Original Source” for Purposes of Public Disclosure...

On January 4, 2016, the Seventh Circuit issued an opinion addressing the scope of the public disclosure bar under the False Claims Act (“FCA”). In United States ex rel. Bogine v. Medline Industries, Inc., 809 F.3d 365 (7th...more

6/17/2016 - False Claims Act (FCA) Original Source Public Disclosure Relators Retroactivity

Supreme Court to Clarify Standard for Dismissal of Qui Tam Complaints for Violations of the False Claims Act’s Seal Requirement

On May 31, 2016, the Supreme Court of the United States granted certiorari in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby (No. 15-513) to clarify the standard for sanctioning intentional violations of the...more

6/7/2016 - Certiorari Collective Knowledge False Claims Act (FCA) Government Claims Motion to Dismiss Relators SCOTUS Sealed Records Split of Authority State Farm Fire and Casualty Co v United States ex rel Rigsby

Recent Ninth Circuit En Banc Decision Makes It Easier for Relators to be an Original Source and the First- to-File

On July 7, 2015, the United States Court of Appeals for the Ninth Circuit issued an en banc decision that potentially makes it easier for relators to prevail on pending False Claim Act qui tam suits and bring new actions in...more

7/22/2015 - ALJ Appeals Dismissals En Banc Review False Claims Act (FCA) First-to-File Health Care Providers Healthcare Medical Devices Medicare Public Disclosure Qui Tam Relators

Supreme Court Unanimously Upholds FCA Statute of Limitation Defense and Clarifies Applicability of the First-to-File Bar in KBR...

Tuesday, the Supreme Court of the United States released a unanimous opinion in Kellogg Brown & Root Services Inc. v. United States ex rel. Carter, resolving a pair of open procedural questions that frequently arise in False...more

5/28/2015 - Defense Contracts False Claims Act (FCA) First-to-File Fraudulent Charges KBR (formerly Kellogg Brown & Root) Qui Tam SCOTUS Statute of Limitations WSLA

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