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Follow Up on False Claims Act Actions

By Jacqueline C. Wolff and Benjamin J. Wolfert

You are the Senior Vice President and General Counsel at Pharmaceutical Company ABC. For years, you have been responding to multiple subpoenas from the Civil Division of the U.S. Attorney's Office in your District. You have produced hundreds of thousands of documents in response. You have held multiple meetings with Assistant U.S. Attorneys and representatives from the U.S. Department of Health and Human Service's Office of Inspector General (OIG), during which the government has asserted that it is investigating whether ABC has been defrauding the Centers for Medicare and Medicaid Services (CMS).

You have spent a significant amount of ABC's monies paying an outside law firm to conduct an internal investigation to determine whether the federal government's suspicions are warranted, and to gather evidence to disprove any such suspicions. Your attorneys have engaged a consulting firm at ABC's expense to conduct analytics showing that any falsity in any of the claims submitted was due to error. You have signed tolling agreements in order to avoid being hit with a complaint while your outside counsel continues to investigate. And throughout this whole period, you have been wondering whether there is an underlying False Claims Act (FCA) qui tam that triggered this investigation and that remains under seal.

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