Milberg maintains an active practice representing whistleblowers in qui tam lawsuits brought under the federal False Claims Act ("FCA") and state false claims laws. The Firm represents whistleblowers who have independent knowledge of fraud on government entities and government entitlement programs in order to secure substantial returns to federal and state treaturies. When a case is successful, whistleblowers may be entitled to an award of up to 30% of any recovery in recognition of their efforts in identifying the fraud.
Milberg attorneys have expertise in prosecuting a wide range of qui tam cases involving fraud perpetrated on the government through the Medicare and Medicaid programs, misapplication of government grants, and through false representations made in connection with government contracts. The Firm has returned hundreds of millions of dollars to federal and state treasuries. The Firm’s successful results include the following:
Milberg successfully represented whistleblower Sean Mason in an action against Medline Industries, one of the country’s largest suppliers of medical and surgical products, alleging that Medline engaged in an illegal kickback scheme that improperly caused the United States to purchase millions of dollars worth of Medline’s medical and surgical supplies. Upon an investigation into Mason’s allegations, the United States declined to join the case. Mason, nevertheless, elected to continue his case and, within a year of Mason’s retention of Milberg, the Court denied Medline’s motion to dismiss the action in its entirety, accepting Mason’s novel application of the “false certification” theory of liability to attach to Medline for causing third parties (here, providers) to falsely certify compliance with federal law prohibiting kickbacks. Approximately one year later, an $85 million settlement was reached with the United States, representing the second largest settlement of a False Claims Act case on record in which the government declined to intervene. For his part in bringing the fraudulent conduct to light and continuing the case at his own risk and expense, Mason was awarded 27.5% of the settlement proceeds, or $23.375 million.
Milberg represented one of the whistleblowers in the FCA case brought against Bristol-Myers Squibb (“BMS”) in connection with the company’s “off-label” promotion and sales of the anti-psychotic drug, Abilify. In unlawfully promoting Abilify for use in children and in the treatment of dementia-related psychosis, BMS also allegedly induced physicians to prescribe Abilify by paying kickbacks and other incentives in violation of the Anti-Kickback Statute. The case brought by Milberg’s client was one of seven qui tam actions that formed the basis of the Government’s investigation into BMS’s illegal marketing tactics, resulting in a settlement of over $515 million.
Milberg successfully represented a whistleblower in an FCA case against Cell Therapeutics, Inc. (“CTI”) that arose from CTI’s unlawful marketing campaign for its cancer drug, Trisenox, which included the payment of kickbacks to physicians to induce them to prescribe the drug for off-label uses. Following an investigation of CTI’s misconduct based upon information provided by the whistleblower and his counsel to the United States Attorney’s Office in Seattle, Washington, the federal government elected to join in the case, ultimately settling with CTI for $10.5 million. In a landmark decision, the whistleblower was awarded a 15% share in the settlement amount for his efforts in identifying the fraud and assisting the government in prosecuting the case, despite the government’s contention that the whistleblower was a “planner and initiator” of the fraud who was not entitled to any share of the recovery.
One goal of the False Claims Act is to foster a public-private partnership between whistleblowers and the government to investigate and prosecute fraud. To that end, our clients can take advantage of the Firm’s team of in-house investigators who work closely with whistleblowers and the Firm’s attorneys to uncover additional facts and evidence in the prosecution of claims. The development of a strong factual and legal foundation underlying the claims in a qui tam action is of crucial importance in persuading the government to join a qui tam lawsuit or pursue a whistleblower’s claim. However, even when the government does not join, or intervene in, a qui tam action, Milberg has the unique resources and commitment necessary to continue prosecuting the action on a non-intervened basis.