The federal False Claims Act (FCA) has become an increasingly utilized enforcement tool for whistleblowers, the US Department of Justice (DOJ) and state attorneys general. In today’s regulatory and enforcement climate, billions of dollars and corporate reputations are at stake when these matters arise, and skilled, experienced counsel is more critical than ever. Hunton & Williams LLP’s FCA team provides clients with comprehensive representation, deploying lawyers from across the firm’s practices to develop aggressive, appropriate strategies for FCA defense. Our team offers clients substantial experience in these complex and high-stakes matters, employing a collaborative and comprehensive approach to our representation.
Successful resolution of FCA matters requires both subject-matter expertise and an appreciation of the client’s industry and specific business. Depending upon the unique facts and circumstances of each matter, we will deploy members of the firm’s white collar, securities litigation, labor & employment, competition & antitrust, capital finance and litigation teams to provide tailored solutions to the matters at hand. These teams not only are familiar with the intricacies of the False Claims Act, but offer industry-specific solutions that take each client’s distinct business and legal aims into account. Our team mobilizes quickly to address the many facets of FCA compliance, investigations and suits. We immediately assess the whistleblower’s allegation, analyze our client’s exposure and engage with the government regarding intervention. From the beginning we prepare to successfully litigate actions, be they civil or criminal, pursued by whistleblowers or the government. We also prepare clients for issues that may arise following an FCA investigation, such as securities litigation, fraud investigations, class actions or other claims. We also offer compliance counseling to clients to reduce the likelihood of FCA violations, including development of employee counseling programs, performing audits to assess areas of vulnerability and monitoring of statutory changes and circuit court decisions.
The team has experience on both sides of FCA matters, drawing upon its government experience and more recent work for clients. Members of our team include a former United States Attorney for the Western District of Virginia, an attorney-advisor in the Office of Legal Counsel at the DOJ, a number of former Assistant United States Attorneys, a former Counsel to the Deputy Attorney General of the United States Department of Justice, and a former Deputy Assistant Attorney General and Chief of Staff of the Antitrust Division of the Department of Justice, as well as the former Deputy Attorney General for the state of Virginia.
Some of the matters we have worked on recently include:
- Defended a health care consulting firm in a qui tam action filed under the civil False Claims Act alleging more than $300 million in upcoding and violations of the Stark Law and anti-kickback statute. The matter was concluded with a zero-liability determination by the government for the company, and a nominal settlement for relator on employment claims only.
- Represented a health care provider in criminal investigation and civil forfeiture action based on allegations of dispensing of controlled substance without a legitimate medical purpose, and fraudulent urinalysis testing and upcoding under the FCA. We negotiated a global resolution that resulted in a sentence of probation and a civil forfeiture.
- Represented a health care provider initially identified as a target in an investigation by the FBI involving improper billing practices and violations under the FCA; successfully resolved the matter for the provider to be treated as a witness and no charges were ever filed against the provider.
- Representing home health provider in parallel qui tam action and criminal investigation involving allegation of loans as kickbacks for referrals.
- Representing chief operating officer for home health company identified as a target in federal investigation of Medicaid fraud based on allegations of FCA violations for false certification of aides, inflated plans of care and improper billing of respite hours.
- Conducted internal investigation and audit for hospital system to address potential liability under the civil FCA based on improper billing practices and lack of documentation. Advised client on a direct disclosure to DOJ and currently negotiating a global resolution of civil and administrative liability associated with the overpayment.
- Conducted internal investigation and audit for hospital system to address potential liability under the civil FCA based on allegations that cardiac stenting procedures were performed without medical necessity. Advised client on a direct disclosure to DOJ regarding facility claims and currently negotiating a global resolution of civil and administrative liability associated with overpayment.
- Conducted internal investigation and audit for health care provider related to potential civil FCA liability related to time increments billed to federal health insurance provider.
- Conducting internal investigation for health care provider related to potential civil FCA liability related to inclusion of certain service providers in billing federal health insurance provider.
- Negotiated resolution of landmark FCA case alleging off-label promotion by major pharmaceutical manufacturer. The company pleaded guilty to misbranding, settled civil claims, paid over a billion dollars in criminal and civil fines and forfeitures, and agreed to significantly change its marketing and compliance practices.
- Represent two state agencies in FCA investigation involving alleged misuse of Medicaid funds. This matter has involved substantial document production, thorough internal investigation, evaluation of Medicaid claims data, legal research regarding the applicability of the statute to state agencies, and negotiation with the DOJ.
- Defended DOJ investigation of several community hospitals’ involvement in laboratory unbundling practices and settlement of related improper billing practices.
- Represented pharmacy customer in connection with DOJ’s intervention in $3.5 billion qui tam case alleging illegal discounts offered by pharmaceutical manufacturer in exchange for patient prescription conversions. Manufacturer settled for $370 million; DOJ did not seek joinder of our client.
- Represented multihospital system in connection with more than 400 cases of alleged improper implantation of implantable cardioverter defibrillators (ICDs) as part of qui tam case against more than 3,000 hospitals. Negotiated settlement with DOJ for approximately $4 million.
- Represented numerous providers in effecting settlement through self-disclosures of noncompliant billing practices, including engaging experts to perform statistical sampling analyses and extrapolations of potential overpayment liability and negotiating with DOJ and state Medicaid Fraud Control Units for the settlement of such overpayments.
- Resolved and settled federal FCA matter arising with respect to alleged inadequate physician supervision of radiosurgery services. Settlement agreement with DOJ and Office of Inspector General (OIG) did not result in the imposition of a corporate integrity agreement upon the billing provider.
- Defended hospital service provider in health care fraud investigation, convincing government to decline intervening in FCA case.
- Represented a hospital management company in a matter regarding an individual provider who was involved in a conspiracy to submit false claims.
- Currently representing a health management company in a matter involving emergency room software and hardware used for admissions.
- Currently representing a hospital involving irregularities in the standard of care stemming from the privatization of LSU hospitals.
- Currently defending a physician pharmacy alliance in a matter involving a criminal investigation into its founder.
- Conducted internal investigation for government contractor to address whistleblower allegations of change in labor violations and false certifications to the government. Provided advise on response options, remedial actions and improvements to training policies and procedures.
- Represented chief executive officer and vice president of global firearms manufacturing company as individuals in an investigation by the FBI and DCIS involving allegations of bribes and kickbacks to government employees and potential liability under the FCA. Following proffer sessions and cooperation with the government, the matter was resolved with no action taken against the officers or the company.
- Conducted internal investigation and liability assessment for government contractor to address allegations of kickbacks provided by a subcontractor and potential time-mischarging associated with direct and indirect contracts with the government. Represented client on disclosure to the Department of Defense, Inspector General and Department of Justice to obtain a global resolution of civil and administrative liability associated with the overpayment.
- Represent ship husbanding company in FCA investigation involving submission of costs for port services to US Navy. This ongoing matter has required substantial document production, internal investigation and analysis of government contracts and related regulations.
- Currently representing a client that is a global supplier to the nuclear power industry and that supplied materials used in the construction of a nuclear power plant. From 2008–2014, we conducted an internal investigation for the client to address federal agencies’ allegations of providing worthless goods and making false claims and certifications to the government as to compliance with contractual specifications and nuclear regulations; provided thousands of documents in response to subpoenas; defended numerous witness interviews; and engaged in extensive settlement negotiations with the DOJ. We learned in 2014 that a relator had filed a qui tam lawsuit in December 2013. The lawsuit remains sealed and the government investigation is still open.
- Representing a major oil company in a multijurisdiction docket that includes FCA cases, direct actions by states, various governmental investigations, claims of fraud, unjust enrichment and breach of contract by numerous states. The core allegation is that the oil company received money from both its insurers and various state underground storage tank (UST) funds for the same costs associated with certain environmental liabilities.
- Conducted internal investigation for utility company relating to environmental compliance issues and certifications to state and federal regulatory agencies. Provided assessment of criminal, civil and administrative liability — including false statements liability under the FCA — and made recommendations on response options and remedial actions.
- Represent state agency in FCA investigation involving alleged misuse of food stamp funds for biased quality assurance processes. This case has involved substantial internal investigation and negotiation of administrative remedy.