False Claims Act Litigation & Whistleblower / Qui Tam Defense

Kenneth M. Abell

David M. Eskew

Scott R. Landau

AEL has extensive experience in all aspects of litigation under the federal False Claims Act (FCA), including matters resulting from whistleblower and qui tam complaints. For healthcare concerns, FCA litigation can raise challenging issues and create significant exposure, in particular where the matter was initiated by current or former company insiders. As soon as our clients become aware of a potential FCA action, we conduct a prompt and thorough review, identify and exploit weaknesses in the case and, if the case does move forward, work to reach a favorable outcome. Our track record of success stems from our collective experience as former civil and criminal prosecutors who investigated and prosecuted some of the nation’s largest and most significant FCA matters in recent years. We have a strong rapport with long-standing DOJ lawyers who are tasked with overseeing FCA matters, and seek to leverage these relationships to successful resolutions of FCA matters.

Representative Matters

  • Successfully resolved multi-year investigation involving a prominent New York-based obstetrician/gynecologist with the New York Attorney General’s Office (NYAG). The case arose from a years-long investigation by the NYAG under the New York State version of the False Claims Act. After years of investigation and months of negotiation, AEL ultimately convinced the State to resolve the matter as a relatively small overpayment, instead of a False Claims Act violation, with no admissions by the client of wrongdoing, no penalties, and no exclusion from billing the Medicaid program.
  • Obtained dismissal of putative class action alleging that “flu shot” reminder text message sent by physician’s practice violated the Telephone Consumer Protection Act (TCPA); dismissal affirmed on appeal by Second Circuit Court of Appeals in noteworthy decision regarding TCPA’s “health care exception” and scope of “prior express consent” (Latner v. Mount Sinai Health System, Inc., 2016 WL 10571897 (SDNY Dec. 14, 2016), aff’d 879 F.3d 52 (2d Cir. 2018)).
  • Obtained dismissal of FCA qui tam action alleging that medical school misappropriated federal grant funds by treating allegedly “ineligible” patients in connection with 9/11 first responder treatment program (US ex rel. Ramos v. Icahn School of Medicine at Mount Sinai, 2015 WL 5472933 (SDNY Sept. 16, 2015)).
  • Represented and successfully resolved FCA qui tam action alleging that hospital and medical school overcharged federal Medicare program and New York State Medicaid program for outpatient radiology services.
  • Litigated and negotiated innovative “structured settlement” agreement in putative class action lawsuit against hospital system alleging that physical access barriers and practices that failed to accommodate individuals with disabilities violated Title II of the Americans With Disabilities Act (ADA).