First Day of “Recent Developments in False Claims Act Litigation” Program Explores Legislative Changes, Government Role

Attendees of the first day of the Recent Developments in False Claims Act Litigation program witnessed in depth discussion by several leaders in the field. Chair and Moderator Thomas M. Greene started off the program with a presentation on basic tenets of the Act and developing trends in pending and recently resolved cases, building on the written program Introduction which acted as a primer on the False Claims Act for those with less background.

Panelist Kirsten V. Mayer of Ropes & Gray led off discussion of the Fraud Enforcement and Recovery Act’s changes to intent required in the submission of false claims before analyzing case law interpreting Federal Rule of Civil Procedure 9(b)’s requirement to plead fraud with particularity in the context of the False Claims Act. Panelists differed on the direction in which 9(b) pleading was headed in the First Circuit Court of Appeals, but generally agreed that because the elements of proof for some false claims cases had been reduced, the tenor of Rule 9(b) disputes would change, if not necessarily for the benefit of relators.

Greene LLP attorney Michael Tabb, who contributed an article on the effect of the Patient Protection and Affordable Care Act on False Claims Act litigation, then presented changes to the public disclosure bar. In addition to illustrating how the definition of “public disclosure” had changed and the effects of removing the jurisdictional element of the bar, Mr. Tabb detailed the amendments to the bar’s original source exception, highlighting a renewed importance that potential whistleblowers take care with their first steps in exposing fraud.

Gregg Shapiro of the U.S. Attorney’s Office explained federal intervention decisions to begin the second panel. Joseph Savage of Goodwin Procter introduced the topic of earlier unsealing by District Court judges, which led to contentious debate among the panelists on the merits of keeping cases under investigation and so-called “partial unsealing” by the government. Chris Walsh, Chief of the Medicaid Fraud Division at the Office of the Massachusetts Attorney General, then laid out some of the inner workings of the role Massachusetts takes in national False Claims Act cases, the National Association of Medicaid Fraud Control Unit’s procedure in evaluating and coordinating cases, and the relationship between state and federal investigations and interventions.

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