Practice Areas False Claims Act, Qui Tam, & Whistleblower

Overview

Berger Montague’s Whistleblower, Qui Tam & False Claims Act Group has recovered more than $3 billion for federal and state governments, as well as over $500 million for the Firm’s whistleblower clients.

Table of Contents

The Firm has been litigating False Claims Act cases for over two decades, and cut its teeth serving as counsel for several whistleblowers in In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456 (D.Mass), a multidistrict litigation involving allegations that drug manufacturers were reporting fraudulent pharmaceutical prices, causing Medicare and Medicaid to overpay for drugs. In that multidistrict litigation, the Firm, along with co-counsel, helped secure settlements totaling over $1 billion for the federal and state governments. 

Featured Cases

Berger Montague’s record of success for whistleblowers and defrauded taxpayers continues today. Below is a selection of cases over the last decade in which the Firm’s attorneys achieved remarkable results.

Medi-Cal Fraud

United States ex rel. Zissa v. Santa Barbara County Alcohol, Drug, and Mental Health Services, et al.

In United States ex rel. Zissa v. Santa Barbara County Alcohol, Drug, and Mental Health Services, et al., No. 14-cv-06891-DMG (C.D. Cal.), Berger Montague was lead counsel for a former county compliance officer who had been illegally fired for uncovering and reporting Medi-Cal fraud. 

The county’s behavioral wellness agency was illegally billing Medi-Cal for services to patients without first assessing their medical needs or creating an up-to-date treatment plan. The agency was also inappropriately billing non-qualifying activities as “medication support,” one of the services Medi-Cal reimburses most highly. The government declined to intervene. 

Undeterred, Berger Montague attorneys aggressively litigated the case, achieving a $28 million settlement for the federal government and the Firm’s client. Berger Montague attorneys Sherrie Savett, Lane Vines, William Ellerbe, and William Fedullo represented the whistleblower, who was awarded a relator’s share (the amount a whistleblower is awarded under the False Claims Act for having helped the government recover money) of 28.5% of the government’s recovery, in addition to $3 million as compensation for her retaliatory firing.

Medicaid Fraud: Best Price Rule

United States ex rel. Streck v. Bristol-Myers Squibb Co.

In United States ex rel. Streck v. Bristol-Myers Squibb Co., No. 2:13-cv-7547 (E.D.Pa.), Berger Montage served as co-counsel representing a whistleblower who learned that the drug manufacturer Bristol-Myers Squibb had defrauded state Medicaid programs. 

Under federal law, a drug manufacturer cannot charge Medicaid programs more than the best price it offers private drug purchasers. The whistleblower alleged that Bristol Myers-Squibb had falsified its pricing data in order to avoid giving Medicaid this best price. 

The government declined to intervene in the case, but in 2021, after vigorous litigation by Berger Montague and co-counsel, Bristol-Myers Squibb ultimately agreed to pay $75 million to the federal and state governments. Berger Montague attorney Joy Clairmont represented the whistleblower. 

United States ex rel. Kieff and LaCorte v. Wyeth and Pfizer, Inc.

In United States ex rel. Kieff and LaCorte v. Wyeth and Pfizer, Inc., Nos. 03-12366 and 06-11724-DPW (D. Mass.), Berger Montague represented one of two whistleblowers who alleged that the drug manufacturers, Wyeth and Pfizer had defrauded the Medicaid program in connection with the sale of the drug Protonix. 

Wyeth and Pfizer had given deep discounts to hospitals purchasing Protonix but failed to report these discounts to the government. By doing so, they violated Medicaid’s best price rule. As a result of the whistleblowers’ allegations, in 2016 Wyeth and Pfizer agreed to pay the government $784.6 million. 

Berger Montague attorneys Sherrie Savett and Joy Clairmont represented the whistleblower. 

Healthcare Fraud

United States ex rel. Jain v. Universal Health Services, Inc.

In United States ex rel. Jain v. Universal Health Services, Inc., et al., No. 2:14-cv-00921 (E.D. Pa.), Berger Montague’s represented a whistleblower in a case involving a company that owned and operated psychiatric hospitals and residential psychiatric and behavioral treatment facilities. 

The United States intervened in the case and related cases from other whistleblowers, resulting in a $117 million global settlement in 2020 to, in the words of the Department of Justice, “resolve allegations that [Universal Health Service’s] hospitals and facilities knowingly submitted false claims for payment to the Medicare, Medicaid, TRICARE, Department of Veterans Affairs, and Federal Employee Health Benefit programs for inpatient behavioral health services that were not reasonable or medically necessary and/or failed to provide adequate and appropriate services for adults and children admitted to UHS facilities across the country.” 

Berger Montague attorneys Sherrie Savett, Joy Clairmont, and Russell Paul served as counsel for the whistleblower. 

Violations of the Anti-Kickback Statute

United States ex rel. Srivastava v. Trident USA Health Services LLC, et al.

In United States ex rel. Srivastava v. Trident USA Health Services LLC, et al., No. 16-cv-2956 (E.D. Pa.), Berger Montague represented the former Chief Information officer of a company that provided mobile diagnostic and x-ray services to nursing home residents. The whistleblower alleged that the company engaged in a “swapping” arrangement, in which it provided certain diagnostic services to nursing homes at below cost, in exchange for those nursing homes referring to the company their more remunerative Medicare Part B and Medicaid business. 

“Swapping arrangements” like this violate the Anti-Kickback Statute, which makes it illegal to pay any kind of remuneration in exchange for the referral of federal healthcare business. In 2019, the Defendants agreed to pay $8.5 million to settle these claims. 

This result was particularly remarkable, as Trident had previously declared bankruptcy and attempted to discharge its False Claims Act liability. In order to stop Trident’s attempt to dodge responsibility for fraud, Berger Montague brought an adversary proceeding, In re Trident Holding Company, LLC, No. 19-10384 (SHL) (S.D.N.Y. Bankr.), and obtained a ruling that Trident’s False Claims Act liability could not be discharged in bankruptcy. 

The First Assistant United States Attorney for the Eastern District of Pennsylvania, Jennifer Arbittier Williams, praised the Firm for its role in the case, saying that it, along with its whistleblower client and counsel for a separate whistleblower, had provided “vital and exceptionally valuable support to the government’s effort in this case, even after Trident’s bankruptcy put any recovery in doubt.” 

Berger Montague attorneys Sherrie Savett and Russell Paul served as counsel for the whistleblower, who received over $2 million as a result of the settlement.

United States ex rel. Silver v. Omnicare, Inc.

In United States ex rel. Silver v. Omnicare, Inc., No. 1:11-cv-01326-NLH-AMD (D.N.J.), Berger Montague represented a whistleblower who learned that Omnicare, a provider of pharmaceutical services to nursing homes, was engaged in a swapping scheme in violation of the Anti-Kickback Statute. 

The whistleblower alleged that Omnicare was offering nursing homes steep discounts on pharmaceuticals dispensed to certain patients, in exchange for those nursing homes referring Omnicare their Medicare Part D business. In 2014, three of the Defendants, including Omnicare, agreed to pay the government $124.24 million to settle these claims and those of a separate whistleblower who filed a substantially similar claim in Ohio. 

The settlement with the government encompassed both the Pennsylvania and Ohio cases. Berger Montague attorney Sherrie Savett represented the whistleblower. 

Grant Fraud

United States ex rel. Burris v. The Scripps Research Institute

In United States ex rel. Burris v. The Scripps Research Institute, No. 1:15-cv-01443 (D. Md.), Berger Montague represented a scientist employed by Scripps that learned of grant fraud. According to the whistleblower, Scripps was using money from National Institutes of Health-funded research grants to pay for time spent by its researchers on activities outside of the scope of the grant: writing applications for other grants, teaching, and other administrative duties. 

In 2020, Scripps agreed to settle the matter for $10 million. Berger Montague attorneys Sherrie Savett, Joy Clairmont, and Russell Paul represented the whistleblower, who was awarded $1.75 million.

Active Cases

The Firm is also actively litigating high-stakes non-intervened False Claims Act cases, including: 

  • United States ex rel. Silver v. Omnicare, Inc., No. 1:11-cv-01326-NLH-AMD (D.N.J.). While several defendants settled, Berger Montague continues to litigate against Pharmerica. The whistleblower’s case has survived a motion to dismiss and a motion for judgment on the pleadings. Daubert motions were fully brief and the court sustained in large part the testimony of both side’s experts. Summary judgment has been filed by defendant and is currently being briefed. Berger Montague attorneys Sherrie Savett, Michael Fantini, and William Ellerbe represent the whistleblower. 
  • United States ex rel. Penelow v. Janssen Products, LP. Et al., No. 12-cv-7758  (ZNQ) (LHG) (D.N.J.). Defendant filed a motion to dismiss and later for Summary Judgment on behalf of Janssen. Both motions were denied.  The case has survived summary judgment and Daubert motions and is awaiting trial. Berger Montague attorneys Sherrie Savett, Joy Clairmont, Michael Fantini, and William Ellerbe represent the whistleblower. 
  • United States ex rel. Behnke v. CVS Caremark Corp. et al., No. 2:14-cv-00824 (E.D. Pa.). The whistleblower’s case has survived a motion to dismiss. Competing summary judgment and Daubert motions are currently being litigated. Berger Montague attorneys David Sorensen, Caitlin Coslett, Joy Clairmont, Susan Thomas, and William Fedullo represent the whistleblower. 
  • United States ex rel. Ruggeri v. Magee Womens Research Institute and Foundation, et al., No. 2:19-cv-00862 (W.D. Pa.). The parties are currently litigating a motion to dismiss.  Berger Montague attorneys Sherrie Savett, Barbara Podell, Joy Clairmont, William Ellerbe, and William Fedullo represent the whistleblower.

Berger Montague continues to investigate new cases and has submitted several cases to the Government that are currently under seal. The Firm has also successfully represented IRS and SEC whistleblowers. 

Qui Tam Cases Require Experienced Qui Tam Lawyers

Close Client Relationships and Confidentiality

Berger Montague’s approach in qui tam representation involves cultivating close, productive attorney-client relationships with the maximum degree of confidentiality for our clients. Our goal is for each of our clients’ experience as a whistleblower working with our firm and the Government to be as positive and fulfilling as possible. 

We make ourselves available at times that fit your schedule and will reach out to you as often as needed to make sure that you understand any complications, victories, setbacks or delays, as well as to consult with you about significant strategy decisions. There are almost always bumps and jolts along the path from an initial inquiry until a final resolution of your case, and we are fully committed to sticking with you and supporting you along that entire journey.

No Fees Without Recovery

Berger Montague’s Whistleblower, Qui Tam & False Claims Act practice group litigates cases on a contingent fee basis, so whistleblowers do not pay attorneys’ fees or court costs unless there is a recovery.

Contact a Whistleblower Lawyer

Do you need a whistleblower lawyer or do you want to know more about qui tam law?

There are three easy ways to contact our firm:

Your information will remain confidential while we evaluate your potential claims and we will work with you to protect your rights.

False Claims Act, Qui Tam, & Whistleblower FAQs

What is Whistleblowing?

Whistleblowing involves individuals willing to come forward to stop fraud and other wrongdoing against the government (and by extension, the taxpayers). Those individuals who come forward are known as whistleblowers. You can read more on our blog post “What is Whistleblowing?”

What is the False Claims Act?

The Federal False Claims Act (“FCA”) is the primary weapon in combating fraud against the federal government. The FCA covers fraudulent claims made against any federal agency, program, contract, or grant. Many states have similar laws to protect themselves against fraud. Under the FCA, whistleblowers are permitted to bring a case on behalf of the federal government to recover damages on its behalf. For more information, we recommend our blog post “What is the Federal False Claims Act?”

How Long Does a Whistleblower Case Take?

As with most complex litigation, many factors are considered when estimating the length of time until a whistleblower case concludes. In sum, a whistleblower lawsuit can take anywhere from under a year to decades. However, most whistleblower lawsuits are expected to take at least several years. You can read more on our blog post “How Long Does a Whistleblower Case Take?”

Can You be Fired for Whistleblowing?

No. The Federal False Claims Act includes a provision that protects whistleblowers (whether employees or independent contractors) from retaliation by their employers. The anti-retaliation provision of the FCA prohibits an employer from retaliating against an employee “because of lawful acts done by the employee…in furtherance of an action under this section or other efforts to stop 1 or more violations.” 31 U.S.C. §3730(h). Prohibited retaliation includes: termination, suspension, demotion, harassment, or any other discrimination in the terms and conditions of employment. For more information, we recommend our page “Employment Protections for Whistleblowers.”

What Does “Qui Tam” Mean?

“Qui tam” derives from the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “who as well for the king as for himself sues in this matter.” This means that both the government and private citizens (known as whistleblowers or relators) can sue for violations of the False Claims Act. You can read more on our blog post “Qui Tam Lawsuits.”

Can a Whistleblower be Anonymous?

Courts generally want litigation to be transparent and visible to the public, and there are rules in place designed to permit the public to view court proceedings. The good news is that although complete anonymity is not possible, there are various methods to (at least partially) protect the identity of whistleblowers in certain circumstances. For more information, we recommend our blog post “Can Whistleblowers Remain Anonymous?”

What Does “Qui Tam Relator” Mean?

The simplest answer is that, in False Claims Act cases, the “qui tam relator” is the whistleblower who brings the FCA claims against the company or individual who is committing fraud. Usually a qui tam relator is an insider—typically a current or former employee—who has access to confidential information showing that his or her employer has been committing fraud against the government. You can read more on our blog post “What is a Qui Tam Relator?”

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