Chamber Litigation Blog

February 17, 2022

Jeffrey S. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP

This week’s report on top False Claims Act (FCA) developments includes: DOJ’s announcement that it recovered more than $5.6 billion from FCA actions during fiscal year 2021; two recent settlements reflecting the government’s ongoing use of the FCA to pursue allegations of healthcare fraud; an unpublished Ninth Circuit decision reversing the dismissal of a qui tam action under the public-disclosure bar; and a petition for certiorari seeking review of a Seventh Circuit decision in an FCA case raising questions concerning Fed. R. Civ. P. 9(b) and the scope of implied certification liability under the FCA.

February 3, 2022

Jeffrey S. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP

This week’s report on top False Claims Act (FCA) developments includes: a Fourth Circuit decision holding that a defendant cannot “knowingly” commit fraud under the FCA if it acts consistent with an objectively reasonable reading of federal law; a First Circuit decision adopting a deferential standard for reviewing government dismissals of qui tam FCA actions; a Sixth Circuit decision reversing a denial of attorneys’ fees to relators; and an FCA settlement involving allegations of illegal kickbacks.

January 27, 2022

Supreme Court Urges Courts to Undertake a Context-Specific Scrutiny of Excessive-Fee Claims in ERISA Cases and Pay Heed to the “Range of Reasonable Judgments a Fiduciary May Make”

Jaime A. Santos and Christina Hennecken, Goodwin Procter LLP

On Monday, the Supreme Court vacated the Seventh Circuit’s decision in Hughes v. Northwestern University, an important ERISA case.  Although the Court’s decision vacated a Seventh Circuit victory for plan sponsor Northwestern, it provided helpful guidance to plan sponsors: The Court made clear that the plausibility pleading requirement as articulated in Twombly and Iqbal applies with full force in ERISA excessive-fee cases, and it reaffirmed the importance of a context-sensitive scrutiny of allegations at the pleading stage. 

January 24, 2022

Jason A. Levine, Gillian H. Clow, Ryan Martin-Patterson, Giles Judd, and Stephen Tagert, ALSTON & BIRD LLP

The top developments in COVID-19 litigation since our last post are: the Supreme Court’s decisions to stay enforcement of OSHA’s private-sector employer vaccine-or-test mandate, and to deny a stay of a similar mandate for healthcare facilities that receive Medicare and Medicaid funding; an investor lawsuit against a pharmaceutical company for alleged misstatements about a COVID-19 treatment; and another investor lawsuit against a healthcare provider that allegedly downplayed its costs related to COVID-19.   

January 20, 2022

Ethan P. Davis, Amy B. Boring, and Kassi N. Conley, King & Spalding LLP

This week’s top False Claims Act (FCA) developments include: the Supreme Court’s call for the views of the Solicitor General on a certiorari petition related to FCA pleading requirements; the reversal of an attorneys’ fee award against a relator; continued FCA enforcement against companies that allegedly defrauded American servicemembers; and FCA settlements involving allegations of improper billing codes and unnecessary genetic testing.

January 10, 2022

Jason A. Levine, Ryan Martin-Patterson, and Stephen Tagert

The top developments in COVID-19 litigation since our last post include: court action on federal vaccine mandate challenges, including oral argument in the Supreme Court; a purported whistleblower complaint against Moderna concerning supposedly inaccurate public disclosures about its patents; Pfizer’s settlement of a patent dispute relating to its vaccine; and a class action against New York State’s omission of a religious exemption from its statewide vaccine mandate for healthcare workers. 

January 6, 2022

Jeffrey S. Bucholtz, Maggie Thomas, Jacqueline Van De Velde, King & Spalding LLP

This week’s top False Claims Act (FCA) developments include:  the first court of appeals decision squarely holding that monetary awards in declined qui tam cases qualify as fines imposed by the United States for purposes of the Eighth Amendment’s Excessive Fines Clause; DOJ’s dual criminal and civil pursuit of companies that allegedly defrauded American servicemembers; and a settlement highlighting DOJ’s broad net with respect to opioid-related enforcement efforts. 

December 20, 2021

Jason A. Levine, Gillian H. Clow, and Giles Judd

The top COVID-19 litigation developments all involve vaccine mandates, namely: the Sixth Circuit’s dissolution of a prior Fifth Circuit stay order that enjoined OSHA’s employer vaccinate-or-test mandate; the Supreme Court’s refusal to enjoin New York State’s vaccination requirement for healthcare workers; the issuance of nationwide injunction against President Biden’s vaccine mandate for federal contractors; and the Fifth Circuit’s denial of an injunction against United Airlines’ vaccine mandate for its employees.

December 16, 2021

Ethan P. Davis, William S. McClintock, and Mark J. Villapando, King & Spalding LLP

This week’s top False Claims Act (FCA) developments include: a Second Circuit decision holding that the FCA’s materiality requirement applies to expressly false and factually false claims; an FCA settlement resolving allegations that a construction contractor caused Vermont to submit false claims to the Federal Highway Administration; an FCA settlement related to home health services and alleged improper claims submitted to Medicare and Medicaid; a resolution demonstrating the willingness of DOJ to take a “double-barreled” approach and pursue civil and criminal penalties against individuals for Anti-Kickback Statute (AKS) and Stark Law violations; and a district court decision dismissing an FCA case filed by DOJ after finding state medical drug coverage restrictions improper.

December 6, 2021

Jason A. Levine, Ryan Martin-Patterson, & Stephen Tagert

The top COVID-19 litigation developments since our last post are: court orders enjoining federal vaccine mandates promulgated by federal agencies and President Biden; the dismissal of an antitrust lawsuit against Apple related to a COVID-19 tracking app; and a securities lawsuit against Novavax executives over alleged public misstatements about its prospects for developing a vaccine candidate.   

November 23, 2021

Jeffrey S. Bucholtz, Ethan P. Davis, Amy B. Boring, and Hamilton Craig, King & Spalding LLP

This week’s top False Claims Act (FCA) developments include:  another example of opioid-related FCA enforcement; continued FCA settlement activity involving allegations of kickbacks; the Department of Justice’s intervention in an FCA case alleging fraudulent price reporting against a company that supplies ingredients to compounding pharmacies; and a settlement of FCA allegations against the Archdiocese of New Orleans relating to alleged fraud against the Federal Emergency Management Agency (FEMA).

November 19, 2021

Suzanne P. Clark, president and CEO of the U.S. Chamber of Commerce, announced today that “the Chamber is putting the FTC on notice that we will use every tool at our disposal, including litigation, to stop their abuse of power, stand up for due process, and protect the free enterprise system and America’s vibrant economy.”  The following press release describes actions the Chamber is taking today, including two letters that the Litigation Center sent to the FTC:

https://www.uschamber.com/regulations/u-s-chamber-of-commerce-stands-up-to-ftc-going-rogue 

November 15, 2021

Jason A. Levine, Gillian H. Clow, and Giles Judd

The top COVID-19 litigation developments since our last post are: lawsuits challenging the validity of President Biden’s new private-sector “vaccinate-or-test” mandate; a Texas court’s ruling overturning the Governor’s Executive Order that prohibited schools from enforcing mask mandates; a Texas court’s denial of a preliminary injunction against United Airlines’ vaccination mandate for employees; and the FTC’s contention, in a California case, that private companies cannot force the Commission to regulate Apple’s alleged efforts to keep a COVID-19 tracking app out of the App Store. 

November 11, 2021

Michael Paulhus, Isabella Wood, and Maggie Thomas, King & Spalding LLP

This week’s top False Claims Act developments include: a Third Circuit decision regarding standards applicable to government dismissals of qui tam actions; legislative developments related to potential amendments to the FCA; the Department of Justice’s intervention in an FCA action against a Medicare Advantage insurer alleging unsupported diagnoses; an award of attorneys’ fees based on a relator’s harassing behavior; and FCA settlements involving requests for reimbursement alleged to be based on medically unnecessary urine drug testing and Paycheck Protection Program funds.

November 1, 2021

Jason A. Levine, Ryan Martin-Patterson, & Stephen Tagert

The top COVID-19 litigation developments since our last post include: new EEOC guidance on religious exemptions to workplace vaccination requirements; OSHA citations against an employer for alleged workplace safety and reporting violations after an employee’s death from COVID-19; Second Circuit’s affirmance of a trial court’s refusal to enjoin New York City’s vaccination mandate for teachers; and a new lawsuit asserting that the Fair Debt Collection Practices Act (“FDCPA”) prohibits collection of student loan debts that were temporarily suspended by the CARES Act.

October 28, 2021

Seth H. Lundy, Amy Boring, and Katie Harris, King & Spalding LLP

This issue highlights the following top False Claims Act (FCA) developments: (1) a district court’s hesitation to award treble damages and significant penalties for a minor licensing violation; (2) the Department of Justice’s (DOJ’s) announcement of a new Civil Cyber-Fraud Initiative; (3) an FCA settlement relating to valves supplied to the U.S. Navy; and (4) our take on how enforcement practices from the opioid crisis could expand FCA exposure in other areas.

October 18, 2021

Jason A. Levine, Gillian H. Clow, and Giles Judd, Alston & Bird LLP

The top COVID-19 litigation developments since our last post are: the U.S. Supreme Court’s refusal to enjoin New York City’s vaccine mandate for teachers; Texas Governor Greg Abbott’s ban on enforcement of vaccine mandates in the State of Texas; a Texas court’s temporary restraining order against United Airlines’ placing unvaccinated employees on unpaid medical leave; and the voluntary dismissal of a lawsuit against Target over allegedly misleading claims made in its advertising for hand sanitizer. 

October 7, 2021

Jeffrey S. Bucholtz, William McClintock, and Isabella Wood, King & Spalding LLP

This week’s top False Claims Act (FCA) developments include: remarks from Christi Grimm, Principal Deputy Inspector General at the Department of Health and Human Services, regarding the agency’s enforcement priorities; the Department of Justice’s intervention in a Medicare Advantage FCA action involving allegedly unsupported diagnoses; a Supreme Court petition for certiorari filed by a healthcare marketing consultant that seeks review of a Fourth Circuit Anti-Kickback Statute decision; and a large jury verdict in an FCA action in Alabama.

October 7, 2021

By Stephanie Maloney

Earlier this year, the Federal Advisory Committee on Appellate Rules announced that it is considering a proposal that would require amicus briefs filed by trade associations to disclose all donors who contribute 10% or more of their annual revenues. 

To push back on this effort, the U.S. Chamber Litigation Center submitted  a letter to the Federal Advisory Committee discussing the impact of the Supreme Court’s recent Americans for Prosperity decision on the disclosure requirements and then responding to some of the arguments for why change is needed.   

October 4, 2021

Jason A. Levine, Ryan Martin-Patterson, and Stephen Tagert

The top COVID-19 litigation developments since our last post are: challenges to workplace vaccination mandates by employees in Kentucky, Massachusetts, and New York; a similar challenge to the U.S. Armed Forces’ vaccination mandate; and a decision dismissing a workplace COVID-19 prevention and exposure lawsuit as barred by Texas’s liability shield statute.