George B. Breen, Member of the Firm in the Health Care & Life Sciences and Litigation practices and Chair of the firm’s National Health Care & Life Sciences Practice Steering Committee, in the firm’s Washington, DC, office, was quoted in Bloomberg Health Law & Business, in “Justices Appear Open to Whistleblowers’ Drug Fraud Arguments,” by Daniel Seiden. (Read the full version – subscription required.)
Following is an excerpt:
The US Supreme Court during oral arguments Tuesday struggled to get a clearer understanding of whether a proper interpretation of the False Claims Act requires reviving drug price fraud claims against SuperValu Inc. and Safeway Inc.
But some justices indicated that the FCA requires consideration of a defendant’s subjective intent, which could lead to reinstating the suits.
Whistleblowers in two consolidated cases say the US Court of Appeals for the Seventh Circuit relied on an improper interpretation of the FCA’s scienter standard to reject their claims against the companies. The appeals court said that the companies didn’t knowingly submit false claims because their interpretation of pricing rules was objectively reasonable.
The companies are accused of telling Medicaid and Medicare they sought reimbursement at their “usual and customary” price for the drugs, even as retail customers paid less. …
George Breen, who represents FCA defendants with Epstein Becker & Green PC in Washington, D.C., said the “tenor of the argument today suggests that the court may determine that the lower court should have considered the defendants contemporaneous subjective understanding at the time of the submission of the claims.”
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