False Claims Act, Qui Tam, & Whistleblower

Berger Montague’s award-winning team has litigated False Claims Act cases for over two decades. Berger lawyers Sherrie Savett, Joy Clairmont, Michael Fantini, and William Ellerbe won The Anti-Fraud Coalition’s Whistleblower Lawyers of the Year Award this year for their work on United States ex rel. Silver v. Omnicare, Inc., PharMerica Corp, et al. and United States et al. ex rel. Penelow v. Janssen Products, LP. Both were government-declined cases that Berger Montague doggedly litigated for over a decade. The PharMerica case settled for $100 million, and the Janssen judgment could exceed $1 billion.

Few firms are willing to take the risk of fully litigating a qui tam case where the government has declined to intervene. Even fewer firms are willing to do so against large corporations. But we do. And we have a record of winning.

Our Record of Success

The False Claims Act team cut its teeth serving as counsel for several whistleblowers in In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456 (D. Mass). This was a multidistrict litigation (MDL) alleging that drug manufacturers reported fraudulent pharmaceutical prices, causing Medicare and Medicaid to overpay for drugs. We worked tenaciously to secure settlements totaling over $2 billion for the federal and state governments.

In United States ex rel. Zissa v. Santa Barbara County Alcohol, Drug, and Mental Health Services, et al. Case No: 14- cv-06891- DMG (RZX) (CDCAL), Berger Montague brought this Medi-Cal fraud case for a former Santa Barbara County compliance officer who had been illegally fired for uncovering and reporting Medi-Cal fraud. The government declined to intervene, but our team aggressively litigated this case achieving a $28 million settlement for our client and the Federal government. It was one of the largest False Claims Act settlements against a public entity.

In United States ex rel. Streck v. Bristol-Myers Squibb Co., No. 2:13-cv-7547 (E.D. Pa.), Berger Montague, on behalf of their whistleblower client, achieved a $75 million settlement resolving allegations that Bristol-Myers Squibb had fraudulently underpaid rebates on its drugs owed to State Medicaid Programs across the country.

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 federal government by failing to give the government its Best Price, as required by Medicaid, on its acid-reflux drug, Protonix. The case settled for $784.6 million.

In United States ex rel. Jain v. Universal Health Services, Inc., et al., No. 2:14-cv-00921 (E.D. Pa.), Berger Montague represented a whistleblower who was a psychiatrist who had worked in a UHS hospital and claimed a national scheme by this giant hospital system of over 100 in-patient psychiatric hospitals who were violating Medicare regulations concerning admittance and treatment in these facilities on a national basis. The government intervened in this case and related cases and reached a global settlement of $127 million.

In United States ex rel. Srivastava v. Trident USA Health Services LLC, et al., No. 16-cv-2956 (E.D. Pa.), in this False Claims Act and Anti-Kickback Statute case, 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. We obtained an $8.5 million settlement in this case within the context of a Chapter 11 bankruptcy proceeding.

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 who 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. Research funds were improperly claimed from approved grants for time spent by principal investigators writing applications for other, unrelated grants, teaching, and other administrative duties. Scripps settled this case for $10 million.

Our 2024 Victories

In United States ex rel Silver v. Omnicare, Inc. et al, No. 11-cv-1326 (NLH)(AMD) (D.N.J.), the relator alleged that defendant PharMerica violated the federal False Claims Act and Anti-Kickback Statute by offering kickbacks to certain nursing homes in the form of below-cost Part A prescription drug prices in exchange for the referral of their federally-insured Medicare Part D business. This unlawful practice is known as “swapping” and is a form of a kickback. In November 2023, after 13 years of hard-fought litigation, and just two weeks before trial, the parties reached an agreement to settle this case for $100 million.

In United States ex rel Penelow v. Janssen Products, LP, No. 12-7758 (ZNQ)(JBD) (D.N.J.), the relators alleged that Janssen violated the federal and state False Claims Acts by engaging in false, fraudulent, and off label marketing of two of its HIV drugs Prezista and Intelence from June 2006 to 2014. After 12 years of litigation, and a 6-week trial held in May/June 2024, the jury reached a verdict finding that Janssen violated the federal and state FCAs and finding that federal and state damages collectively amount to over $150 million. With the imposition of mandatory trebling of damages and civil penalties, the judgment could exceed $1 billion. This represents one of the largest False Claims Act jury verdicts (in a government-declined case) in history. Relators have moved the Court to enter judgment in the case, which will be subject to appeal. The parties are currently awaiting decisions from the District Court Judge on Janssen’s post-trial motions and Relators’ Motion for Entry of Judgment.

Pending Cases and Investigations

Our team is also actively litigating high-stakes False Claims Act cases where the government declined to intervene. Examples are below:

In United States ex rel. Behnke v. CVS Caremark Corp. et al., No. 2:14-cv-00824 (E.D. Pa.), relator alleges that CVS Caremark Corp. (including its pharmacy benefit manager subsidiary, CVS Caremark) caused the submission of false and inflated drug prices for purchases made at three national chain pharmacies (Walgreens, Rite Aid, and CVS pharmacies), causing the federal government to overpay for these generic drugs. After defeating summary judgment, relator’s case is scheduled for trial in March 2025.

In United States ex rel. Ruggeri v. Magee Womens’ Research Institute and Foundation, et al., No. 2:19-cv-00862 (W.D. Pa.), relator alleges that defendants abused federal research grant funds for their own financial convenience in violation of the statutory and regulatory rules controlling federal grants for medical and scientific research. The case involves large NIH grants which are claimed to have been improperly managed and drawn upon by the Magee Foundation and the University of Pittsburgh.

Relationship with the Federal and State governments

Berger Montague continues to investigate new cases and has filed under seal several Federal Court cases involving the federal government and often involving states as well who have parallel False Claims Act statutes. We maintain a strong relationship with the US Attorneys in many states. We have been told over the years that the government offices look very carefully at the cases we present because of the thoroughness of our investigations and the quality of the complaints we file. The Firm has also successfully represented IRS and SEC whistleblowers.

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:

• Use the Request a Free Consultation form
• Email quitam@bm.net
• Call (844) 781-3088

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