False Claims Act Defense
Companies that do business with the government rely on O’Melveny’s False Claims Act Defense Team for their complex litigation and compliance challenges.
O’Melveny Introduces Unsealed: Following the False Claims Act—A New Hub Tracking Critical FCA Developments
Companies that do business with the government rely on O’Melveny’s False Claims Act Defense Team for their complex litigation and compliance challenges.
O’Melveny Introduces Unsealed: Following the False Claims Act—A New Hub Tracking Critical FCA Developments
As the United States’ chief civil enforcement tool for investigating and pursuing alleged fraud against the government, the FCA can expose companies to enormous financial risk. Each year, DOJ obtains billions of dollars in FCA settlements and judgments, with more than US$40 billion in the last decade alone. This past year, private FCA whistleblowers filed a record number of new lawsuits, as DOJ separately opened hundreds of new investigations. And with ever-expanding theories of falsity, the FCA has become a tool to enforce the current administration’s policy goals. As DOJ and relators’ counsel continue their aggressive pursuit of FCA claims, any entity or person that does business, directly or indirectly, with the US government—or invests in companies that do government business—must understand and protect against FCA liability risks.
O’Melveny’s False Claims Act Defense Group includes former Department of Justice prosecutors, Chambers-ranked litigators, and career defense lawyers with an expansive track record of successfully defending clients in FCA enforcement efforts. From the initial Civil Investigative Demand through trial and appeal, our False Claims Act Defense Group guides clients through the unique challenges posed by government enforcers and whistleblower litigants. Our work has led the Department of Justice to decline and, in many cases, dismiss relators’ FCA cases. We have also resolved state and federal government investigations with favorable outcomes before they became public. And in court, we have faced off against both DOJ and aggressive whistleblower counsel, winning significant victories for FCA defendants and arguing cases of first impression on appeal.
Services
- Government Investigations. We counsel companies and individuals facing active government investigations over alleged FCA violations. O’Melveny protects clients’ interests while driving toward a favorable resolution with the investigating entity.
- Government Enforcement. O’Melveny defends clients in FCA litigation against government enforcers, including DOJ-initiated FCA suits and intervened qui tam litigation. We draw on robust experience litigating against the government along with a deep bench of former DOJ attorneys to build strong defenses for our clients.
- Civil Qui Tam Litigation. In cases where the government declines to intervene and a qui tam relator pursues an FCA action to litigation, we have a long record of securing dismissals and successful settlements.
- Internal Investigations. When concerns about potential FCA violations arise, our interdisciplinary team guides companies, boards, and audit committees through highly sensitive internal investigations, which we conduct to help clients assess FCA allegations, implement preventative measures, and identify any corrective measures needed.
Areas of Experience
- Anti-Kickback Statute
- Affordable Care Act
- Customs Duties/Tariffs
- Cybersecurity and Data Privacy
- Defective Pricing
- Defense Contracts
- Diversity and Inclusion
- Federally Insured Mortgages
- Medicaid
- Medicare Advantage
- Medicare Secondary Payer Act
- Pharmaceutical and Medical Device Marketing
- Paycheck Protection Program/CARES Act
- Stark Law
Defending Elevance Health in DOJ-initiated litigation involving allegations that its Medicare Advantage business improperly retained payments based on potentially invalid diagnosis data in connection with its chart review practices. United States v. Anthem, Inc., No. 20-cv-02593 (S.D.N.Y.).
Secured dismissal of a qui tam lawsuit alleging collusion with medical providers to submit fraudulent claims for inflated Medicare Advantage reimbursements following a groundbreaking ruling in which the judge struck down the FCA’s qui tam provisions as unconstitutional.
Defended a major bank and a large mortgage servicing company against FCA lawsuits alleging that they falsely certified compliance with Home Affordable Modification Program requirements. O’Melveny successfully negotiated settlements of each of these suits at a small fraction of the alleged damages.
Won a significant victory on behalf of Humana in a relator’s appeal to the Eleventh Circuit, which affirmed the district court’s dismissal of the lawsuit with prejudice. The case represents an important holding for defendants in the FCA’s public disclosure bar jurisprudence. U.S. ex rel. Osheroff v. Humana, 776 F.3d 805 (11th Cir. 2015).
Represented Humana in litigation over FCA allegations related to the Medicare Part D bid process and achieved a favorable settlement. U.S. ex rel. Scott v. Humana, No. 3:18-cv-00061 (W.D. Ky.).
Defended multiple Kaiser Permanente health plans and medical groups against FCA allegations based on disputed medical record documentation and coding standards in the Medicare Advantage program. U.S. ex rel. Osinek et al. v. Kaiser Permanente, No. 13-cv-03891 (N.D. Cal.).
Defended a Kaiser Permanente health plan against FCA allegations that a vendor failed to comply with Medicare Advantage diagnosis data submission standards, causing the defendant to submit incorrect data to the government. O’Melveny secured a favorable settlement with DOJ. U.S. ex rel. Ross v. Group Health Cooperative, No. 12-cv-0299S (W.D.N.Y.).
Resolved an FCA investigation into allegedly inflated rates charged to a government agency for a large transportation industry client.
Representing a major defense contractor in connection with a DOJ investigation into FCA allegations related to alleged labor mischarging under government contracts.
Defending a major national insurance company in connection with an FCA investigation by DOJ and HHS-OIG and subsequent litigation of an unsealed qui tam complaint alleging that the company failed to comply with Medicare Advantage diagnosis data submission requirements. O’Melveny won dismissal of several of the relator’s claims, leading to a successful settlement on the remaining claims. U.S. ex rel. Graves v. Plaza Medical Centers, No. 1:10-cv-23382 (S.D. Fla.).
Defending major national managed care organizations against FCA allegations relating to compliance with Medicare Advantage regulations, including allegations related to inflated premiums resulting from chart review practices of contracted providers and in-home assessment vendors. O’Melveny has achieved dismissals of two clients from such matters and secured a favorable settlement with DOJ in another matter. U.S. ex rel. Swoben v. SCAN Health Plan, No. 2:09-cv-05013 (C.D. Cal.); U.S. ex rel. Ramsey-Ledesma v. Censeo Health, LLC, No. 3:14-cv-000118 (N.D. Tex.); U.S. ex rel. Silingo v. Mobile Medical Examination Servs., Inc., No. 8:13-cv-01348 (C.D. Cal.).
Represented a major medical-device manufacturer in a multi-year investigation into Anti-Kickback Statute allegations and allegations of marketing inaccurate reimbursement guidance. The case resulted in a favorable settlement for O’Melveny’s client amounting to less than one-quarter the amount of the co-defendant’s settlement.
Represented a large nonprofit organization in a DOJ investigation regarding allegedly false representations in connection with a Paycheck Protection Program loan.
Representing a global pharmaceutical company in a high-profile qui tam matter in Texas, in which the state’s Supreme Court will rule on the constitutionality of the qui tam provisions of the state’s False Claims Act. The court will also determine whether the state can allow a relator to proceed in a non-intervened case and whether qui tam relators must have suffered an actual injury.
Representing numerous Medicare Advantage Organizations in responding to civil investigative demands issued by DOJ in FCA investigations related to Medicare risk adjustment, Medicare Part D, the Anti-Kickback Statute, and other federal health care laws and regulations.
Representing a pharmacy benefits manager in a DOJ investigation of a qui tam complaint alleging our client and others in the industry pressured pharmaceutical companies to keep prices high in exchange for rebates and increased fees at the government’s expense. O’Melveny’s advocacy in this matter resulted in a declination for our client.
Defending against a US$1.8 billion False Claims Act lawsuit in Texas alleging that Planned Parenthood Federation of America encouraged five Planned Parenthood affiliates to submit fraudulent claims to federal and state Medicare programs. O’Melveny obtained summary judgment for Planned Parenthood on the plaintiffs’ reverse False Claims Act allegations and convinced the court to stay the trial on the remaining claims pending the Fifth Circuit’s review of a key attorney-immunity issue. The team successfully argued that attorney immunity bars FCA liability based on lawyers’ legal advice and litigation conduct, and that the denial of summary judgment on those grounds is immediately appealable under the collateral-order doctrine. In a unanimous decision, the Fifth Circuit rejected allegations that the nonprofit aided affiliates in submitting fraudulent Medicaid claims and delivered a significant win on an issue of first impression with broad implications for FCA enforcement and defense. The appeal is currently pending before the en banc court.
Represented a vitamin and supplement manufacturer and distributor in response to allegations that false claims were submitted in filings with Customs and Border Protection related to the import of goods into the United States.