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David Douglass is Managing Partner of the firm's Washington, D.C. office, a partner in its Government Contracts, Investigations and International Trade Practice Group and leader of the Organizational Integrity Group.

The COVID-19 pandemic has thrown us all into a crisis of uncertainty.  How does one stop a global pandemic?  How long will it take to bend the contagion curve?  How should the business community respond, to both the public health and financial challenges?  How we as a nation, as individuals, and as businesses respond to these challenges, will reveal and test our values.
Continue Reading Leading with Values in Times of Crisis

In United States, et al., ex rel. Ruckh v. Salus Rehabilitation, LLC, et al., Case No. 8:11-cv-1303-T-23TBM (M.D. Fl. Jan. 11, 2018), a federal district court judge offered a thoughtful, cogent analysis of both the letter and spirit of the Supreme Court’s decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016) to reverse a jury’s $350 million verdict in favor of the United States and Florida (as well as the relator). The decision provides valuable guidance concerning how the Escobar holding should be applied to analyzing the actual evidence established under a False Claims Act (“FCA”) case, as distinguished from mere allegations. The lesson is that while Escobar will undoubtedly affect the standard of pleading required in motions to dismiss, its greater potential impact is on motions for summary judgment, where mere allegations without substantiating evidence will be insufficient to survive dismissal.
Continue Reading FCA Materiality: It’s One thing to Proclaim but It’s Another Thing to Prove

The Fifth Circuit recently affirmed the grant of summary judgment in favor of Omnicare, Inc., in a qui tam action alleging violations of the False Claims Act (“FCA”) and the Anti-Kickback Statute (“AKS”). The ruling signifies that, to violate the AKS, there must be unambiguous evidence that a business specifically designed its practices to induce referrals.

Continue Reading Fifth Circuit: No Anti-Kickback Violation When Defendant Merely Hopes or Expects Referrals from Benefits Designed for Other Purposes

We previously reported on a D.C. Circuit case in which a three-judge panel held that when the government is silent, there is no False Claims Act (FCA) liability for a contractor’s “objectively reasonable” interpretation of an ambiguous contract provision. The government is now seeking a rehearing en banc (a rehearing by all of the D.C. Circuit judges) in the hopes of rolling back the panel’s ruling. 
Continue Reading DOJ Seeks Rehearing in D.C. Circuit Case, Hoping to Resurrect Liability for a Contractor’s “Objectively Reasonable” Interpretation of an Ambiguous Contract Provision

In a potentially influential decision, the Federal Court for the Southern District of New York has in effect recognized a safe-harbor exception to the strict 60-day overpayment return rule, which was incorporated into the False Claims Act, 31 U.S.C. §§ 3729 et seq. (“FCA”).
Continue Reading Kane et al., v. Healthfirst, Inc., et al. Is There Now a Judicially Created Return of Over-Payment Safe Harbor?