AthenaHealth Inc. defeated an appeal by a pair of whistleblowers seeking a little over $1 million in attorneys’ fees and costs on an $18.25 million False Claims Act settlement.
The whistleblowers, Cheryl Lovell and William McKusick, didn’t qualify for fee recovery because they didn’t receive a “relator’s share” of the funds, the US Court of Appeals for the First Circuit said Wednesday.
Only the first-to-file whistleblower, Geordie Sanborn, was allocated funds under Athena’s settlement agreement.
Lovell and McKusick shared in the funds collected by Sanborn pursuant to their own agreement. But the FCA doesn’t authorize receipt of a relator’s share via a separate private sharing agreement between whistleblowers, the court said, addressing a question of first impression in the circuit.
The court also also affirmed Sanborn’s fee award.
Sanborn sought about $762,000 in attorneys fees and appealed after he was awarded only about $391,000. But—addressing another novel question—the First Circuit concluded he was entitled to attorneys’ fees only for work related to claims on which the government elected to intervene.
Sanborn filed his sealed qui tam complaint on Oct. 30, 2017, alleging that Athena operated incentive programs to induce purchases of its medical software products in violation of the Anti-Kickback Statute, and that it...
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