{"id":16108,"date":"2019-04-09T18:47:19","date_gmt":"2019-04-09T18:47:19","guid":{"rendered":"https:\/\/nichols.law\/?p=16108"},"modified":"2019-04-11T13:34:04","modified_gmt":"2019-04-11T13:34:04","slug":"continuing-debate-over-governments-prerogative-to-dismiss-qui-tam-fca-suits","status":"publish","type":"post","link":"https:\/\/nichols.law\/?p=16108","title":{"rendered":"Continuing Debate Over Government\u2019s Prerogative to Dismiss Qui Tam FCA Suits"},"content":{"rendered":"<p>By Jason C. Lynch<\/p>\n<p>DOJ\u2019s prerogative to dismiss qui tam complaints is center stage after the much-discussed \u201cGranston Memo.\u201d\u00a0 On April 3, 2019, the Eastern District of Pennsylvania granted DOJ\u2019s motion to dismiss a qui tam complaint brought by two relators, one of which was a shell company formed for the purposes of bringing the suit.<\/p>\n<p>The company, SMSPF, LLC, was part of a group of entity-relators that had brought 12 qui tam actions in eight districts, alleging substantially the same kickback scheme to induce doctors to prescribe Rebif, a multiple sclerosis medication.\u00a0 The government investigated the case for 18 months\u2014relatively quick in the FCA world\u2014and concluded that the case lacked merit.\u00a0 The government moved to dismiss the case because \u201ccontinuing to monitor, investigate, and prosecute the case will be too costly and contrary to the public interest.\u201d\u00a0 Op. at 3.<a href=\"#_ftn1\" name=\"_ftnref1\">[1]<\/a><\/p>\n<p>The court first observed a split in authority over the government\u2019s prerogative to dismiss qui tam complaints under 31 U.S.C. \u00a7\u00a03730(c)(2)(A).\u00a0 The Ninth and Tenth Circuits require the government to justify its decision by showing that dismissal is related to a valid governmental purpose, whereas the D.C. Circuit gives the government unfettered discretion.\u00a0 The Third Circuit, which includes E.D. Pa., has not weighed in<\/p>\n<p>The district court adopted the \u201crational relationship\u201d test from the Ninth and Tenth Circuits.\u00a0 The statutory requirement for a hearing would be meaningless, the court reasoned, if the government had unfettered discretion.\u00a0 And in this case, the court found that DOJ had articulated legitimate government interests: \u201clitigation costs\u201d and \u201cconflict with important policy and enforcement prerogatives of the federal government\u2019s healthcare programs.\u201d\u00a0 Op. at 8, 9.\u00a0 The court rejected the relators\u2019 argument that DOJ was merely hostile to the corporate relator as a \u201cprofessional relator.\u201d<\/p>\n<p>This issue may go to the Third Circuit and, if the split deepens, eventually to the Supreme Court.\u00a0 We shall see.<\/p>\n<p><a href=\"#_ftnref1\" name=\"_ftn1\">[1]<\/a> DOJ rejected anticipatorily the relators\u2019 attempt to amend: \u201cHaving had the opportunity to review substantially similar amendments in numerous other cases filed by [SMSPF\u2019s parent company], [DOJ] d[id] not believe the newly-added details w[ould] change its analysis or request for dismissal.\u201d\u00a0 Op. at 3 n.11 (quoting motion to dismiss).<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By Jason C. Lynch DOJ\u2019s prerogative to dismiss qui tam complaints is center stage after the much-discussed \u201cGranston Memo.\u201d\u00a0 On April 3, 2019, the Eastern District of Pennsylvania granted DOJ\u2019s motion to dismiss a qui tam complaint brought by two relators, one of which was a shell company formed for the purposes of bringing the &hellip;<\/p>\n","protected":false},"author":1,"featured_media":16109,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_genesis_block_theme_hide_title":false,"footnotes":""},"categories":[177],"tags":[],"class_list":{"0":"post-16108","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","6":"hentry","7":"category-false-claims-act-litigation","9":"with-featured-image"},"_links":{"self":[{"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/posts\/16108","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nichols.law\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16108"}],"version-history":[{"count":0,"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/posts\/16108\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nichols.law\/index.php?rest_route=\/wp\/v2\/media\/16109"}],"wp:attachment":[{"href":"https:\/\/nichols.law\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16108"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nichols.law\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16108"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nichols.law\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16108"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}