False Claims Act

We resolve a majority of FCA matters at an early stage of the proceeding, but, when litigation is necessary, we develop favorable and efficient strategies for our clients.

Morrison & Foerster’s U.S. False Claims Act (FCA) practice is composed of former federal prosecutors and seasoned defense lawyers from multiple offices and practices across the firm, including from our award-winning Government Contracts + Public Procurement and Investigations + White Collar Groups. Our team has substantial experience handling FCA investigations and litigation, whether initiated by the government or by whistleblowers.

Our group has a proven record of success in resolving FCA matters at an early stage of the proceeding by convincing the government to decline intervention in the underlying qui tam action or to forgo its investigation altogether. Our lawyers use their first-hand knowledge of how U.S. federal and state enforcement agencies make these decisions to avoid prosecution and to reduce fines and penalties. When litigation is necessary, we develop efficient and productive strategies, including obtaining dismissals under FRCP 9(b) and the FCA’s unique public disclosure and first-to-file bars and winning on summary judgment, at trial or on appeal.

We also advise clients on potential parallel issues, including criminal investigations, suspension and debarment proceedings, civil and criminal subpoenas, employment and retaliation claims, and the shareholder derivative suits that may be filed on the heels of an FCA settlement. We also work closely with clients in establishing or updating global compliance programs, while also assisting with due diligence in connection with mergers and acquisitions.

Our clients are in a wide array of industries, including:

  • Pharmaceuticals
  • Healthcare
  • Medical devices
  • Aerospace
  • Biotechnology
  • Defense
  • Technology
  • Telecommunications
  • Consumer products and services
  • Higher education
  • Transportation

In FCA matters arising in the healthcare and life sciences industries, we have negotiated nationwide FCA settlements with the National Association of Medicaid Fraud Control Units (NAMFCU) and successfully convinced the Office of Inspector General to the U.S. Department of Health and Human Services (HHS‑OIG) to forgo the imposition of onerous Corporate Integrity Agreements. Our team works closely with our FDA Regulatory Practice when advising clients in the life sciences industry, helping them navigate complex regulatory, compliance, healthcare system, and marketplace issues.

Representative Experience

  • An aerospace company in false claims investigations involving both criminal allegations and a civil false claims qui tam action.
  • A medical device maker in a U.S. Department of Justice (DOJ) FCA investigation predicated on alleged violations of the federal Anti-Kickback Statute. The government declined to intervene, and the whistleblower dismissed the qui tam complaint.
  • A healthcare company in a civil false claims action related to Medicare, Medicaid, and Tri-Care billing practices.
  • A university in a false claims investigation being conducted by the U.S. Attorney’s Office in the Northern District of California involving immigration related allegations.
  • McKesson Corporation in a federal qui tam action alleging that McKesson defrauded the Medicaid program by conspiring with, or otherwise causing, a drug-price publishing company to artificially inflate the average wholesale price (AWP) of more than 400 brand-name pharmaceuticals. After negotiating a settlement with the DOJ and NAMFCU, we litigated over a dozen state FCA suits filed by opt-out states in federal and state courts across the country.
  • A national credit-rating agency in a suit filed by the California attorney general under the California FCA seeking to recover investment losses allegedly sustained by California’s two public pension funds—CalPERS and CalSTRS—during the 2007 – 2008 financial crisis. This unprecedented lawsuit marked the first time that any governmental entity had sought to recover investment losses under a false claims statute. Obtained a favorable settlement for our client.
  • A Fortune 50 company in connection with an investigation by the DOJ under the federal FCA regarding alleged overcharges for shipping services.
  • A major steel producer in a qui tam action and parallel criminal investigation, along with related indemnification claims, in the Middle District of Louisiana. The government and the relator initially sought $750 million in damages and penalties, but we settled the entire matter for $15 million, most of which was ultimately recovered for the client from indemnitors, with no criminal charges filed.
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