There have been several significant rulings on various provisions of the False Claims Act (FCA) in the first quarter of this year, which we highlight in this post.
To start the year, in U.S. ex rel. Borzilleri v. Bayer Healthcare Pharmaceuticals, Inc., 24 F.4th 32 (1st Cir. 2022), the First Circuit weighed in on the split over the standard governing the government’s dismissal authority under 31 U.S.C. § 3730(c)(2)(A). The First Circuit adopted a deferential standard permitting the government to dismiss a qui tam action over a relator’s objection as long as the government articulates its reasons for seeking dismissal and the relator does not show any transgression of the government’s constitutional limits or fraud on the court.
The FCA authorizes the government to dismiss a qui tam action over a relator’s objection “if the [relator] has been notified by the Government of the filing of the motion and the court has provided the [relator] with an opportunity for a hearing on the motion.” 31 U.S.C. § 3730(c)(2)(A). The Ninth Circuit requires the government to demonstrate that dismissal bears a “rational relationship” to a valid government interest (the strict Sequoia Orange standard), while the D.C. Circuit gives the government unfettered discretion to dismiss. The Seventh and Third Circuits adopted yet a third standard, relying on the voluntary dismissal standard under Federal Rule of Civil Procedure 41.
In Borzilleri, the relator alleged that...
A front-page article with the byline of veteran New York Times opinion writer Nicholas Kristof is the latest poisonous example of what I call the NGO “halo effect.” Headlined “The Silence That Mee...