Constantine Cannon whistleblower lawyers Marlene Koury and Leah Judge were published in Law360 on the verdict in favor of a whistleblower against Eli Lilly, and what that case says about legal developments in the interpretation of the False Claims Act since the Seventh Circuit’s SuperValu decision. This post is an adaptation of that article.
In August, a Chicago jury in the U.S. District Court for the Northern District of Illinois returned a $61 million verdict for the government in a False Claims Act trial pursued by a whistleblower, Ronald Streck, against pharma manufacturer Eli Lilly and Co. It took the jurors only five hours to decide that Eli Lilly had cheated the Medicaid Drug Rebate Program out of tens of millions of dollars by reporting false drug pricing data.
Although the size of the verdict is significant, perhaps more important is that the relator’s allegations made it to a jury at all. To get to the jury, the whistleblower had to beat back Eli Lilly’s challenge under the U.S. Court of Appeals for the Seventh Circuit’s controversial 2021 decision in U.S. ex rel. Schutte v. SuperValu Inc.
As we have previously written, the SuperValu court held that a defendant does not possess the requisite intent to submit false claims where defendant can offer a post-hoc, objectively reasonable interpretation of the law that justified its prior behavior, and no authoritative guidance warned the defendant away from its course of action. In doing so, the SuperValu court stripped...
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