News & Analysis as of

Rule 9(b)

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

by Ropes & Gray LLP on

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

10 Key FCA Developments Of 2016

by Morrison & Foerster LLP on

2016 was another active year in the land of False Claims Act enforcement. The U.S. Department of Justice continued to set recovery records and turned its eye more keenly on enforcement of individuals. We heard from the...more

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

by Ropes & Gray LLP on

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

Central District of California Subjects CFPB Telemarketing Sales Rule Claims to Rule 9(b)’s Heightened Pleading Standards

by Ballard Spahr LLP on

In a recent case, the Central District of California held that the CFPB’s claims against a credit repair service under the Telemarketing Sales Rule (“TSR”) must meet Federal Rule of Civil Procedure 9(b)’s heightened pleading...more

Whistleblower Can’t Use Discovery Info to Satisfy Rule 9(b)

by Faegre Baker Daniels on

Rule 9(b) requires a whistleblower alleging fraud to “state with particularity the circumstances constituting fraud.” Tom Bingham provided the particularity, but his case was nevertheless dismissed because of the way he came...more

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

by Ropes & Gray LLP on

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

7th Cir. Demands Objective Standards in Whistleblower Complaint

by Faegre Baker Daniels on

On September 1 the Seventh Circuit affirmed dismissal of three of a whistleblower’s four fraud allegations against a mental health clinic, ruling that the allegations were based on the whistleblower’s subjective judgment...more

California Federal Court Dismisses Inferior Complaint

by Reed Smith on

Inferior vena cava filters resemble what we used to call “daddy long legs.” You know what we mean: the spider-like creatures with small centers, from which long, bent legs emanate in all directions. That is sort of what IVC...more

False Ad Claims Fail to Crystalize as Court Dismisses Amended Complaint against Sharp Electronics with Prejudice

Dismissals of class action complaints with prejudice are not as common as dismissals with leave to replead, but a recent decision in the District of New Jersey illustrates the circumstances under which a dismissal with...more

When Inside Knowledge Is a Handicap to a Whistleblower

by Faegre Baker Daniels on

Here’s a riddle: The whistleblower is a former employee of the defendant, with inside knowledge of the operations at the heart of his qui tam suit. How can that inside knowledge be a handicap in pressing his claim? A June...more

Second Circuit Tells Public Figures Suing For Defamation: We Need Plausible Factual Allegations Of Actual Malice

by Kelley Drye & Warren LLP on

In Biro v. Condé Nast, et al., the Second Circuit recently determined that, in a defamation action, limited-purpose public figures must plead in a “plausible way” that the defendants acted with actual malice, citing Federal...more

California Lawyer 2015 Roundtable Series – False Claims Act

by Morrison & Foerster LLP on

False Claims Act practice is evolving in subtle ways that may particularly affect cases where the federal government does not intervene. Recent decisions help clarify the law’s “first-to-file” rule and who may pursue...more

Successful Rule 9(b) Defense of False Claims Act Whistleblower Litigation

by Butler Snow LLP on

The lure of significant monetary awards continues to stimulate high-risk whistleblower actions under the False Claims Act (FCA), and these claims are increasingly common in the pharmaceutical and medical device industry. The...more

Seventh Circuit Uses Rule 9(b) to Dismiss False Claims Act Case

by Foley & Lardner LLP on

The Seventh Circuit has been on quite a tear recently with cases involving the False Claims Act; we wrote about three of them, involving the federal assignment law, the worthless-services doctrine, and the public-disclosure...more

Ninth Circuit Clarifies Pleading Standard for Securities-Fraud Claims

The Ninth Circuit recently joined the debate on whether the heightened pleading standard of Fed. R. Civ. P. 9(b) or the more relaxed notice-pleading standard of Fed. R. Civ. P. 8(a) applies to pleading loss causation for a...more

Another Court Weighs in on Rule 9(b)’s Requirements Under the False Claims Act

A federal district court recently dismissed a qui tam relator’s complaint in a declined case against the Hospital for Special Surgery (“Hospital”), its former CEO, and an outside billing company alleging that they violated...more

Supreme Court Declines to Opine on Circuit Split Over Rule 9(b) Pleading Requirements for FCA Claims

by Epstein Becker & Green on

On March 31, 2014, in U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America, the Supreme Court of the United States declined to review a decision by the U.S. Court of Appeals for the Fourth Circuit upholding a district...more

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