“Based on my 38 years of practice hiring domestic and international legal counsel, I can confidently give my highest recommendation to Bob Rhoad of Nichols Liu. Bob is a renowned expert in FCA law and displays his expertise in both the board room and the court room. It is rare to find a lawyer with the grounding in complex legal theory accompanied by the well-honed skills of an elite litigator. Of additional importance, he can translate seemingly obtuse legalese and procedure for C-suite executives while providing bold recommendations impacting a company’s business environment. When high stakes danger is lurking outside the corporate office, this is the guy you want in your corner.”
– Steve O’Brien, General Counsel
Gallup, Inc.
“Over the last 20+ years, I have worked with Bob on several complex cases. Although I know he is busy, in every matter, Bob gives his undivided attention to the legal and factual issues in the case and finds an approach to achieve a fair outcome. His success with the companies where I have worked in-house is remarkable. In one large FCA investigation involving multiple parties, Bob was able to get the Government to drop my client from its case altogether. In two other FCA matters filed by relators, he was able to get my client out of the cases on motions to dismiss. Bob is a remarkable litigator who will bring the right resources and strategy to any case in which you place your trust in him.”
– Mitchell S.Y. Cohen, EVP; General Counsel
Vituity (f/k/a CEP America)
“The significant FCA accomplishments regularly attained by Bob Rhoad for healthcare industry clients is unparalleled. He is an extraordinary litigation strategist and boasts a well-deserved record as a trailblazer in FCA litigation. Bob consistently demonstrates an intimate understanding of his client’s businesses and goals and exceeds those goals with superlative success. The Nichols Liu firm is the firm any healthcare system should turn to in bet-the-company FCA litigation.”
– Nicholas W. Romanello, SVP, General Counsel, and Chief Risk Officer
Health First, Inc.
Representative False Claims Act (FCA) Matters (Procurement/Non-Health Care)
• Represented pump manufacturer, Moving Water Industries Corporation (MWI), at trial and on appeal to victory against Government in long-running False Claims Act/qui tam case involving the Export-Import Bank of the United States (Ex-Im). Lead Defense/Trial/Appellate Counsel for MWI in connection with FCA/qui tam case alleging fraud related to submissions to Ex-Im, which financed loans to several Nigerian states for their purchase of pumping/irrigation equipment from MWI in the early 1990s. The case was originally filed in 1998. In 2002 (following grand jury proceedings resulting in no criminal indictment), the Government intervened in the civil FCA/qui tam action, seeking trebled damages in excess of $222 million. During the month-long jury trial in 2013, the Government’s common law claims were dismissed with prejudice and the trial resulted in a judgment of zero ($0) damages, notwithstanding a finding of liability as to one FCA count. The Government appealed the judgment on damages and MWI cross-appealed on liability. In 2015, following a marathon-long (two hour) oral argument at the D.C. Circuit (at which Mr. Rhoad argued in support of MWI’s cross-appeal challenging the liability judgment), the D.C. Circuit reversed and remanded the liability finding against MWI with instructions for the district court to enter judgment in favor of MWI (obviating the need to address the appeal by the Government on damages). The Government’s petitions for rehearing and rehearing en banc were denied as was the relator’s petition for a writ of certiorari to the Supreme Court. United States ex rel. Purcell v. MWI Corp., 15 F. Supp. 3d 18 (D.D.C. 2014); United States ex rel. Purcell v. MWI Corp., 807 F.3d 281 (D.C. Cir. 2015), reh’g en banc denied, cert. denied, 137 S.Ct. 625 (2017).
• Represented environmental remediation company, USA Environmental, Inc. (USAE), in False Claims Act/qui tam case involving U.S. Army contract for ordinance disposal in Iraq. Lead Defense/Appellate Counsel for USAE in FCA/qui tam case alleging both fraud by USAE in conjunction with its contract with the U.S. Army to dispose of unexploded ordinance in Iraq and unlawful retaliation against the relator (“whistleblower”). The Government did not intervene. All fraud claims were dismissed with prejudice upon USAE’s motion to dismiss. Amended complaint was then filed on retaliation claim, which was dismissed with prejudice upon USAE’s renewed motion to dismiss. Judgment entered in favor of USAE and against the Relator on all claims alleged. Affirmed by 11th Circuit on appeal following oral argument. United States ex rel. Patricia Howard v. USA Environmental, Inc., Case No. 8:06-cv-00027 (M.D. Fla.) (2009 WL 113444 (dismissing FCA fraud claims with prejudice and FCA retaliation claim without prejudice), 2009 WL 652433 (dismissing FCA retaliation claim and entire case with prejudice)); United States ex rel. Patricia Howard v. USA Environmental, Inc., No. 09-11866 (11th Cir. 2010) (per curiam decision affirming dismissal with prejudice) (March 5, 2010).
• Representing former employees and independent contractor of Symantec Corporation (n/k/a Norton LifeLock) in False Claims Act/qui tam case alleging False Claims Act violations and common law claims related to the sale of Government Services Administration (GSA) scheduled products and services. Lead Defense Counsel for multiple former Symantec Corporation employees and independent contractor in connection with FCA/qui tam case alleging fraud related to the sale of products and services under GSA schedule. The Government intervened and trial is pending. United States ex rel. Lori Morsell v. Symantec Corporation, Case No. 1:12-cv-00800-RC (D.D.C.).
• Represented international analytics and advisory firm, The Gallup Organization (Gallup), in parallel criminal and civil proceedings involving a False Claims Act/qui tam case. Lead Defense Counsel for Gallup in FCA/qui tam case involving parallel criminal and civil proceedings, including allegations of violations of 18 U.S.C. § 207 (conflicts of interest), 18 U.S.C. § 287 (criminal False Claims Act), 41 U.S.C. § 423 (Procurement Integrity Act) and the civil False Claims Act. The False Claims Act claims alleged improper bid pricing in connection with nearly 30 different contracts with eight separate federal agencies and sought trebled damages in the nine-figure range. The Government intervened only as to claims related to three contracts with two federal agencies. Criminal allegations successfully resolved through non-prosecution agreement; civil False Claims Act allegations successfully resolved just prior to filing of motions to dismiss for a small fraction of alleged single damages; and previously imposed suspensions were successfully lifted. United States ex rel. Michael Lindley v. The Gallup Organization, Case No. 1:09-cv-01985-EGS (D.D.C.).
• Represented Defense contractor, ManTech International Corporation (ManTech) in False Claims Act/qui tam case alleging fraud under Department of Defense (DOD) contract performed in Afghanistan. Lead Defense Counsel for ManTech in FCA/qui tam action alleging fraud related to DOD contract for maintenance of armored vehicles in Afghanistan. The Government did not intervene and the case was dismissed. United States ex rel. Joseph Morgan v. ManTech International Corporation, et al., Case No. 1:13-cv-01289-TSC (D.D.C.) (Order, September 4, 2014).
• Represented individual principals in False Claims Act case alleging fraud in connection with U.S. Small Business Administration’s (SBA) Small Business Investment Company (SBIC) Program. Lead Defense Counsel for individual defendants in FCA case alleging fraud under the SBA SBIC Program. The FCA case was brought in connection with separate receivership and tort actions against these and other defendants. Following litigation, the FCA were resolved successfully as part of a global resolution of all pending actions, including the receivership action for which judgment had previously been entered and for less than the judgment previously imposed. United States v. John B. Torkelsen, et al., Case No.2:06-CV-05674 (E.D. Pa.).
• Represented national telecommunications firm, Avaya, in False Claims Act/qui tam retaliation case related to the sale of Government Services Administration (GSA) scheduled products and services. Lead Defense Counsel for Avaya in FCA/qui tam retaliation case involving claim of retaliation for the reporting of alleged false claims in connection with the provision of voice-mail services for several Government agencies. The Government did not intervene. Retaliation claims settled for nuisance value and dismissed with prejudice. United States ex rel. _____ v. _____ (under seal) (C.D. Cal.).
• Represented national, publicly chartered, private corporation, Brand USA, in False Claims Act/qui tam retaliation case involving alleged fraud under federal charter/programs. Lead Defense Counsel for Brand USA in FCA/qui tam retaliation case involving claim of retaliation for the reporting of alleged false claims. The case was settled for nominal amount and dismissed following the filing of a motion to dismiss. Mary Ellen Curto v. The Corporation for Travel Promotion (d/b/a Brand USA), (Case No. 1:14-cv-01670-KBJ) (D.D.C.).
• Represented national insurance company, Zurich American Insurance Co. (Zurich), in False Claims Act/qui tam case alleging fraud in connection with grants awarded under the American Recovery and Reinvestment Act of 2009 (ARRA). Lead Defense Counsel for Zurich in FCA/qui tam case alleging fraud related to grant funding for a renewable energy project under the ARRA. The Government did not intervene. All claims were dismissed with prejudice upon motions to dismiss and appeal to the D.C. Circuit was also dismissed upon motion. United States ex rel. Prescott Lovern v. The Prudential Insur. Co. Of America, et al., Case No. 1:12-cv-00704 (D.D.C.) (Minute Order, January 22, 2014); United States ex rel. Prescott Lovern v. Deutsche Bank Trust Co. Americas, et al., No. 14-7186 (D.C. Cir.) (per curiam opinion, May 6, 2015).
• Represented radio broadcaster/broadcast company, Dr. Cesta Newman and Newman Broadcasting, Inc., in connection with False Claims Act action alleging fraud in connection with bidding credits awarded through an application for a broadcasting awarded by the Federal Communications Commission (FCC). Lead Defense Counsel for Newman Broadcasting and its Founder/President, Dr. Newman in FCA case alleging fraud in connection with the award of bidding credits in FCC “set aside” program. FCA allegations were dismissed with no admission of wrongdoing and no financial settlement by Dr. Newman. United States v. Cesta D. Newman and Newman Broadcasting, Inc., Case No. 16-1169 (D.D.C.).
• Represented international security firm, Custer Battles LLC and its affiliated companies and principles (Custer Battles), in connection with first False Claims Act/qui tam case arising from the Iraq War. Lead Defense/Trial/Appellate Counsel for Custer Battles in FCA/qui tam case alleging fraud in conjunction with two contracts Custer Battles had with the Coalition Provisional Authority (CPA) in Iraq to provide security support services for the Baghdad International Airport (BIAP Contract) and support services for the Iraqi Currency Exchange Program (ICE Contract). Summary judgment granted in favor of the Custer Battles Defendants on all of the FCA fraud claims regarding the BIAP Contract. Judgment as a matter of law was granted in favor of Custer Battles Defendants on all of the False Claims Act fraud claims regarding the ICE Contract following a month-long trial. The Government, which did not intervene in the District Court proceedings, did file a brief and present argument as amicus curiae on appeal to the 4th Circuit. On appeal, the judgment on the BIAP Contract claims was affirmed and the judgment on the ICE Contract claims was reversed and remanded for further proceedings. United States ex rel. DRC, Inc., et al. v. Custer Battles, LLC, et al., 376 F.Supp.2d 617 (E.D. Va. 2005) (granting in part and denying in part summary judgment); United States ex rel. DRC, Inc., et al. v. Custer Battles, LLC, et al., 444 F.Supp.2d 678 (E.D. Va. 2006) (judgment as a matter of law and dismissal of ICE Contract claims); United States ex rel. DRC, Inc., et al. v. Custer Battles, LLC, et al., 472 F.Supp.2d 787 (E.D. Va. 2007) (summary judgment on and dismissal of BIAP Contract claims); United States ex rel. DRC, Inc., et al. v. Custer Battles, LLC, et al., 562 F.3d 295 (4th Cir. 2009).
• Counselled international security firm, Custer Battles LLC and its affiliated companies and principles (Custer Battles), in False Claims Act/qui tam case alleging fraud and improper corporate transfer of Coalition Provisional Authority (CPA) contracts in Iraq. Consulting Counsel for Custer Battles in FCA/qui tam case alleging fraud and improper transfer by Custer Battles, LLC of its contracts with the CPA in Iraq and Iraq assets to an alleged “sham” successor entity to evade the effect of a Government suspension order. The Government did not intervene. While summary judgment motions were pending, the case was dismissed and Relator Mayberry and his counsel were admonished and sanctioned for egregious discovery violations. United States ex rel. Rory Mayberry, et al. v. Custer Battles, LLC, et al., Case No. 1:06-cv-00364-LO-TCB (E.D. Va.).
• Represented national manufacturer of armored military vehicles, O’Gara-Hess & Eisenhardt Armoring Co. (O’Gara-Hess), in False Claims Act/qui tam case alleging fraud related to inspection certifications. Lead Defense Counsel for O’Gara-Hess in FCA/qui tam case alleging fraud related to certifications made in conjunction with up-armoring of military vehicles High Mobility Multipurpose Wheeled Vehicle (HMMWV; colloquial: Humvee) under contract with the Army. The Government did not intervene and the case was dismissed. United States ex rel. _____ v. _____, (under seal) (S.D. Ohio).
• Represented national engineering/construction firm, Valenzuela Engineering, Inc. and its principals (VE), in parallel criminal/civil proceedings involving False Claims Act case related to contracts with the Air Force and Army Corps of Engineers. Lead Defense Counsel for VE in FCA case involving parallel criminal and civil proceedings. VE, which was originally central to the Government’s investigation, was completely vindicated with no indictments or civil settlements with the Government. United States v. Valenzuela Engineering, Inc., (E.D. Cal.).
• Represented an international agricultural development organization (non-governmental organization (NGO) in False Claims Act/qui tam case involving grants issued by United States Agency for International Development (USAID). Lead Counsel for an international agricultural development organization/NGO in FCA/qui tam case alleging fraud in conjunction with contracts/grants with USAID to support various agri-business programs in eastern Europe. The Government did not intervene and the case was dismissed. United States ex rel: _____ v. _____, (under seal) (D.D.C.).
• Represented government contractor/individual in parallel criminal and civil False Claims Act proceedings alleging fraud in connection with the provision of electronic supplies and equipment to the National Aeronautics and Space Administration (NASA). Counsel for individual in parallel criminal and civil proceedings involving alleged fraud conspiracy with contractor related to the provision of electronic supplies, computer equipment, and services to NASA. Individual client was neither indicted nor pursued through civil action by the Government. United States v. Powell, et al., Case No. 00-cr-0054-02 (D.D.C.)
Representative False Claims Act (FCA) Matters (Health Care)
• Representing not-for-profit, fully integrated health care delivery network and health plan, Health First, in connection with False Claims Act/qui tam case based on alleged Anti-Kickback and Stark violations. Lead Counsel for Health First, Inc. and Health First Medical Group, LLC (collectively, Health First). Successfully avoided government (federal and State of Florida) interventions and secured dismissals (with prejudice) multiple complaints in FCA/qui tam action alleging improper manipulation of physician compensation arrangements in violation of the FCA, Florida FCA, Anti-Kickback Statute, and Stark Statute. Motion for recovery of attorneys’ fees and costs remains pending. United States and State of Florida ex rel. Omni Healthcare, Inc. v. Health First, Inc., et al., Case No. 6:19-cv-2237 (M.D. Fla.).
• Representing national physician-led and physician-owned partnership providing physicians, advanced providers, and industry professionals for Emergency Department staffing, Vituity, in connection with False Claims Act/qui tam case based on alleged Anti-Kickback, and Stark violations involving Medicare, TRICARE, CHAMPVA, FEHBP, and Medicaid. Lead Counsel for Vituity (f/k/a CEP and MedAmerica). Successfully avoided government interventions and secured dismissal of claims against client in FCA/qui tam case alleging improper compensation and referrals in violation of the FCA, California False Claims Act, Anti-Kickback Statute, and Stark Statute. United States and State of California ex. rel. Laurie M. Hanvey v. Sutter Health, et al., Case No. 14-cv-04100 (N.D. Cal.).
• Represented pharmaceutical marketing company and its owner in connection with federal criminal investigation/prosecution of alleged fraud under criminal False Claims Act and various other criminal statutes involving alleged fraudulent reimbursement from TRICARE for compounded pharmaceutical products. Successfully represented pharmaceutical marketing company and its owner (as witness) in connection with federal criminal investigation/prosecution of a dispensing pharmacy and its owner charged with 21 counts of wire fraud in violation of 18 U.S.C. § 1343; seven counts of aggravated identity theft in violation of 18 U.S.C. § 1028(a)(1) and (b); five counts of violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); and three counts of money laundering in violation of 18 U.S.C. 1957; and seeking forfeiture. United States v. Matthew Edward Blair, Criminal No. ELH-19-00410 (D. Md.).
• Represented not-for-profit fully integrated health care delivery network and health plan, Health First, in connection with national FCA/qui tam action based on alleged Medicare Advantage fraud. Lead Counsel for Health First, Inc. and Health First Medical Group, LLC (collectively, Health First). Successfully avoided government interventions and secured dismissal of claims against Health First, on motion to dismiss in FCA/qui tam case alleging fraud in connection with alleged manipulation of pre-authorizations for services covered under Medicare Advantage. United States ex rel. Susan Nedza v. American Imaging Management, Inc., et al., Case No. 15-cv-6937 (N.D. Ill.).
• Represented national physician-led and physician-owned partnership providing physicians, advanced providers, and industry professionals for Emergency Department staffing and other specialties, Vituity, in connection with False Claims Act/qui tam action based on alleged FCA violations. Lead Counsel for Vituity (f/k/a CEP and MedAmerica). Successfully avoided government interventions (federal and eight states) and secured dismissal of claims against Vituity, on motion to dismiss in FCA/qui tam action alleging fraud in connection with alleged upcoding/fraudulent billing for services provided under Medicare and Medicaid in violation of the FCA, California False Claims Act, Georgia False Medicaid Claims Act, Illinois Whistleblower Reward and Protection Act, Tennessee Medicaid False Claims Act, Texas Medicaid Fraud Protection Act, Maryland False Health Claims Act, Washington Medicaid False Claims Act, and District of Columbia False Claims Act. Relator (“whistleblower”) voluntarily dismissed action in lieu of responding to motion to dismiss. United States ex rel. Keith Werner v. CEP America, LLC, et al., Case No. 3:15-cv-00561-DRH-DGW (S.D. Ill.).
• Represented palliative/hospice care physician in FCA investigation based on alleged FCA and other criminal and civil violations. Successfully represented palliative/hospice care physician in avoiding indictment, civil action, forfeitures, fines, exclusion, and licensure issues in connection with broad investigation by federal and state government focused on alleged billing improprieties (“upcoding” and billing for services not rendered) in connection with the provision of hospice services rendered and billed under federal and state funded health programs. United States v. Capital Caring (E.D. Va.).
• Represented international specialty brand-name pharmaceutical manufacturer in FCA/qui tam action based on allegations of off-label promotion. Lead Counsel for ProStrakan, Inc. (n/k/a Kyowa -Kirin). Successfully avoided government interventions and obtained dismissal of remaining retaliation claim through nuisance value settlement. United States et al. ex rel. Patricia Critz v. ProStrakan, Inc. [Kyowa-Kirin], Case No. 2:12-cv-02425 (W.D. Tenn.).
• Represented national not-for-profit integrated staff model managed care plan, Kaiser Foundation Health Plan, Inc. (Kaiser), in FCA/qui tam action based on alleged failure to comply Medicare Advantage bidding instructions. Counsel for Kaiser. Successfully avoided government interventions and persuaded Government’s voluntary motion to dismiss case against Kaiser in FCA/qui tam action alleging non-compliance with Medicare Advantage bidding instructions, with settlement with relator during pendency of Government’s motion to dismiss. United States ex rel. Christopher McGowan v. Kaiser Foundation Health Plan, Inc., Case No. 09-5984 (N.D. Cal.).
• Represented national not-for-profit integrated staff model managed care plan, Kaiser Foundation Health Plan, Inc. (Kaiser), in FCA/qui tam action based on alleged. Counsel for Kaiser. Successfully avoided Government intervention and secured relator’s voluntary dismissal on motion to dismiss case against client, Kaiser Foundation Health Plan, Inc., in FCA/qui tam action alleging failure to meet Medicaid MCP Medical Loss Ratio (“MLR”) regulatory requirements. United States ex rel. Graham Mouw v. Kaiser Foundation Health Plan, Inc., Case No. 2:2014-cv-08051 (C.D. Cal.). [(2016)] • Represented international generic pharmaceutical company, Actavis, in FCA/qui tam actions in federal court and state courts based on alleged pharmaceutical pricing violations (“Average Wholesale Price” or “AWP”) under federal and state health programs. Co-Lead Counsel for Actavis. Successfully avoided federal Government intervention and successfully negotiated resolutions just prior to trial of both federal action and action brought by Commonwealth of Kentucky against client, Actavis, (and involving over 40 other pharmaceutical manufacturers). In re: Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Case No. 01-cv-12257 (D. Mass.); United States ex rel. Ven-a-Care of the Florida Keys, Inc. v. Actavis Mid Atlantic LLC, Case No. 08-cv-10852 (D. Mass); Commonwealth of Kentucky ex rel. Gregory D. Stumbo, Attorney General v. Alpharma USPD, Inc. et al., Case No. 04-CI-1487 (Franklin Circuit Court – Div. I).
• Represented national durable medical equipment (DME) company in FCA/qui tam involving allegations of fraud based on false certifications for medical equipment provided to federal health program beneficiaries. Successfully represented DME manufacturer in avoiding government interventions and obtaining dismissal of claims in connection with FCA/qui tam action involving alleged false certifications of DME it manufactured. United States ex rel. _____ v. _____, (under seal) (S.D. Oh.).
• Represented national private, integrated health care system, Kaiser Permanente (Kaiser), in connection with Congressional investigations and hearings before the House Committee on Oversight and Reform and the House Committee on Energy and Commerce Subcommittee on Health on matters related to the Affordable Care Act. Lead Counsel for Kaiser. Successfully navigated Congressional subpoenas and hearings in connection with long-running Congressional investigations on behalf of Kaiser.
• Represented national private federal TRICARE intermediary, Anthem, in connection with in connection with case involving FCA allegations. As Lead Counsel, successfully obtained dismissal of claims brought against client (one of the largest national health plans and TRICARE intermediary) in case involving payment dispute (with attendant FCA exposure for client) under the TRICARE Program. Chesapeake Center, Inc. v. Blue Cross and Blue Shield of North Carolina, et al., (Circuit Court, Fairfax Co., VA).
• Represented national private federal Medicare claims administrator, AdminaStar Federal, in case involving payment disputes in connection with case involving FCA allegations. Lead Counsel for AdminaStar Federal. Successfully obtained dismissal of claims brought against AdminaStar Federal (one of the largest national health plans and Medicare claims administrators), in case involving payment dispute (with attendant FCA exposure for client) under the Medicare Program. Medassist-Op, Inc. v. Donna Shalala, et al, Case No. 1:00-cv-01829 (D.D.C.).
• Represented international durable medical equipment (DME) manufacturer/supplier in False Claims Act/qui tam case alleging fraud under federal health programs. As Lead Counsel for DME manufacturer/supply company, successfully obtained dismissal of claims in False Claims Act/qui tam alleging fraud related to certifications made in conjunction with sales of medical equipment through federal programs.
• Represented two FCA qui tam relators (“whistleblowers”), Messrs. Hunt and Gauger, in case involving alleged fraud by a national pharmacy benefit management company (PBM). Successfully represented two former employee pharmacists of Merck-Medco Managed Care, LLC in FCA qui tam action alleging fraud related to services performed for federal and health programs. Both the federal government and states intervened in the case, which was litigated aggressively for several years, ultimately settling close to trial for approximately $185 million. At the time, it was one of the largest FCA settlements and was the largest civil settlement in Pennsylvania in 2006/2007. United States ex rel. Hunt, et al. v. Merck- Medco Managed Care, LLC, et al., Case No. 00-cv-737 (E.D. Pa.); United States ex rel. Hunt, et al. v. Merck- Medco Managed Care, LLC, et al., 336 F. Supp. 2d 430 (E.D. Pa., 2004); United States ex rel. Hunt, et al. v. Merck- Medco Managed Care, LLC, et al., 340 F. Supp. 2d 554 (E.D. Pa. 2004); United States ex rel. Hunt, et al. v. Merck- Medco Managed Care, LLC, et al., 223 F.R.D. 330 (E.D. Pa. 2004).
• Counselled national health wellness plan, Healthways, in connection with FCA compliance training. Compliance review, training, and counseling for national health improvement, fitness, and social engagement solutions provider, Healthways, to avoid/mitigate FCA/qui tam exposure.
• Represented national not-for-profit, integrated managed care organization, Kaiser Permanente (Kaiser) accused of conspiring with pharmaceutical manufacturers to circumvent the Medicaid “Best Price” statute in connection with criminal and civil investigation involving alleged FCA violations. Successfully avoided indictment, civil actions, fines, forfeitures, and possible exclusion for Kaiser, which was originally identified as a target in connection with national prosecution and civil FCA/qui tam enforcement action related to alleged conspiracy with various brand-name pharmaceutical manufacturers to circumvent the Medicaid Rebate Program/Medicaid “Best Price” Statute. Secured end to investigation, at which point the Government declined pursuit of client despite several criminal pleas and multi- million-dollar civil settlements by alleged co-conspirators, including Bayer Corp., which pled guilty to criminal charges and paid $257 million in fines and civil damages (the largest Medicaid fraud recovery at that point in history), and GlaxoSmithKline, which paid out $88 million. United States ex rel Estate of George Couto v. Bayer Corp., Civil No. 00-10339-PBS (D. Mass.).
Representative Affirmative Recovery Matters (Antitrust and Others)
• Represented large health plan, Health Care Services Corporation, as successful plaintiff at trial and on appeal, winning a multi-million dollar verdict in the very first case tried in federal court by a health plan (indirect purchaser) against a pharmaceutical company involving alleged antitrust violations. As Trial and Lead Appellate Counsel for Plaintiff-Appellee, Health Care Services Corp. (and its operating divisions of Blue Cross Blue Shield of Illinois, Blue Cross Blue Shield of Texas, and Blue Cross Blue Shield of New Mexico) (collectively, HCSC), successfully won jury trial and affirmation on appeal of multi-million dollar verdict/judgment in favor of HCSC. After HCSC elected to opt-out of an underlying class litigation/settlement, and after several additional years of litigation, the case was tried to verdict in a month-long jury trial. The jury returned a verdict for HCSC on all claims and for all damages alleged. It was the first indirect purchaser/third-party payor case involving the pharmaceutical industry actually tried to verdict. Following verdict, the damages awarded for Plaintiffs was trebled and enhanced by the Court and currently amounts to nearly $80 million (over twice the amount of the nationwide class settlement). The case was settled upon its second appeal to the D.C. Circuit in favor of Plaintiffs/Appellees. Health Care Services Corp, Inc., et al. v. Mylan Pharmaceuticals, Inc., et al., Case No. 01-2646 (MDL Docket No. 1290, Misc. No. 99-ms-276) (D.D.C.); Health Care Services Corp, Inc., et al. v. Mylan Pharmaceuticals, Inc., et al., Case Nos. 08-5044, 08-5045 (D.C. Cir.); In re: Lorazepam & Clorazepate Antitrust Litig., 1707135 (D.C. Cir.) (consolidated under the MDL captioned as In re Lorazepam & Clorazepate Antitrust Litig., MDL Docket No. 1290, Misc. No. 99-ms-276) (D.D.C.)).
• Represented large group of health insurance plans in recovering alleged overpayments for pharmaceutical products, including lorazepam and clorazepate, due to alleged antitrust violations by generic pharmaceutical manufacturers. As Counsel for 17 Plaintiff class members in connection with complex antitrust litigation against Mylan Laboratories, Mylan Pharmaceuticals, Gyma Corporation, and Cambrex Corporation, sought and obtained recovery of overpayments due to Defendants’ anticompetitive conduct in the markets for lorazepam (generic equivalent of Ativan) and clorazepate (generic equivalent of Tranxene). Although the majority of these health plan clients elected to participate in the nationwide class settlement some, including HCSC (as referenced above) elected to opt-out and pursue litigation (and ultimately trial) on their own. In re Lorazepam & Clorazepate Antitrust Litig., MDL Docket No. 1290, Misc. No. 99-ms-276) (D.D.C.).
• Represented large group of health insurance plans in recovering alleged overpayments for pharmaceutical products, including Flonase, due to alleged antitrust violations among pharmaceutical manufacturers. As Lead Counsel for large group of health plans, successfully achieved settlement in connection with complex antitrust litigation seeking recovery of overpayments made for Flonase due to alleged anticompetitive conduct. In re Flonase Antitrust Litig., Case No. 12-cv-4212 (E.D. Pa.).
• Represented health insurance plans, including Kaiser, in recovering alleged overpayments for pharmaceutical products, including Plavix, due to alleged antitrust violations by pharmaceutical manufacturers. As Lead Counsel for Kaiser (both a direct and indirect purchaser) in conjunction with complex antitrust litigation against Bristol-Myers Squibb Co., Sanofi-Aventis, Sanofi-Synthelabo, Inc., Sanofi-Aventis U.S. L.L.C., Bristol-Myers Squibb Sanofi Pharmaceutical Holding Partnership, and Apotex Corporation, sought and obtained recovery of overpayments due to Defendants’ alleged anticompetitive conduct in the market for clopidogrel bisulfate tablets (including Plavix). In re: Plavix Direct Purchaser Antitrust Litigation, Case No. 1:06-cv-00202 (MHW) (S.D. Ohio) and In re: Plavix Indirect Purchaser Antitrust Litigation, Case No. 1:06-cv-00226 (MHW) (S.D. Ohio).
• Represented large group of health insurance plans in recovering alleged overpayments for Vioxx for their insureds due to alleged marketing fraud by pharmaceutical manufacturer. As Lead Counsel for large group of health plans, including Excellus Health Plan, Inc., Blue Cross Blue Shield of Minnesota, Blue Cross, Blue Shield of Nebraska, and Blue Cross of Idaho, successfully achieved settlement in connection with complex litigation seeking recovery of overpayments made for Vioxx due to alleged marketing fraud. In re: Vioxx Marketing Fraud Litigation, (619-TPP) (N.J. Sup. Ct. – Atlantic County Division). Lead Plaintiff’s counsel in individual actions captioned as: Excellus Health Plan, Inc., et al. v. Merck, Inc., Case No. L-4354-08 (N.J. Sup. Ct. – Atlantic County Division), Blue Cross Blue Shield of Minnesota, et al. v. Merck, Inc., Case No. L-4355-08 (N.J. Sup. Ct. – Atlantic County Division), Blue Cross and Blue Shield of Nebraska, et al. v. Merck, Inc., Case No. L-4356-08 (N.J. Sup. Ct. – Atlantic County Division), and Blue Cross of Idaho Health Service, Inc. v. Merck, Inc., Case No. L-3019-09 (N.J. Sup. Ct. – Atlantic County Division).
• Represented group of health insurance plans in subrogation recovery for health expenses incurred due to allegedly defective pharmaceutical products. As Lead Counsel for group of health insurance plans, obtained subrogation recovery against proceeds to be paid from $4.85 billion settlement to claimants who were members of and received health benefits for the treatment of Vioxx-related conditions. After litigating for months, a settlement was achieved through which a lien resolution program was established to allow for the efficient and effective subrogation recovery by health insurance plans through the underlying settlement. In re: Vioxx Products Liability Litigation, Case No. MDL 1657 (E.D. La.).
• Represented health insurance plans, including Kaiser, in recovering alleged overpayments for pharmaceutical products, including Buspar, due to alleged antitrust violations by pharmaceutical manufacturers. As Lead Counsel for Kaiser (both a direct and indirect purchaser) in conjunction with complex antitrust litigation against Bristol-Myers Squibb (BMS), Danbury Pharmacal, Inc., Watson Pharmaceuticals, Inc., and Watson Pharma, Inc., sought and obtained recovery of overpayments made by Kaiser due to alleged anticompetitive conduct in the market for Buspar and its generic Buspirone. It was alleged that BMS unlawfully impaired the ability of generic manufacturers from entering the buspirone market to compete with its buspirone product sold under the brand name BuSpar. The case settled following dispositive motions, with Kaiser receiving millions of dollars (more than its actual overpayments) as well as an award of attorneys; fees and costs. In re: Buspirone Antitrust Litigation, MDL No. 1413 (S.D.N.Y.)
• Represented health insurance plans, including Kaiser, in recovering alleged overpayments for pharmaceutical products, including Plavix, due to alleged antitrust violations by pharmaceutical manufacturers. As Lead Counsel for Kaiser (both a direct and indirect purchaser) in conjunction with complex antitrust litigation against Purdue Pharma L.P, sought and obtained recovery of overpayments made by Kaiser due to alleged anticompetitive conduct in the market for OxyContin and its generic equivalents. In re: Oxycontin Antitrust Litigation, Case No. 1:04-md-01603 (SHS) (S.D.N.Y.).
• Represented health insurance plans, including Kaiser, in recovering alleged overpayments for pharmaceutical products, including Taxol, due to alleged antitrust violations by pharmaceutical manufacturers. As Lead Counsel for Kaiser (both a direct and indirect purchaser) in conjunction with complex antitrust litigation against Bristol-Myers Squibb (BMS) and American BioScience, sought and obtained recovery of overpayments made by Kaiser due to alleged anticompetitive conduct in the market for Taxol and its generic placlitaxel equivalents (placlitaxel is a cancer drug discovered and developed by the United States Government). It was alleged that BMS unlawfully monopolized the U.S. market for paclitaxel through a scheme, which included a conspiracy with American BioScience, Inc., a generic manufacturer, to block generic competition. Kaiser received millions of dollars through this settlement. Oncology & Radiation Associates, P.A. v. Bristol Myers Squibb Co., et al., Case No. 1:01-cv-02313 (D.D.C.).
• Represented group of health insurance plans, including Blue Cross Blue Shield of Michigan, Blue Cross and Blue Shield of Minnesota, and Excellus Blue Cross Blue Shield, as class “opt-out” plaintiffs in recovering alleged overpayments for pharmaceutical products, including Cardizem, due to alleged antitrust violations by pharmaceutical manufacturer. As individual Opt-Out Plaintiffs’ Counsel in conjunction with complex antitrust litigation against Aventis S.A. and Andrx, sought and obtained recovery of overpayments made due to Defendants’ alleged anticompetitive conduct in the market for Cardizem CD. After these Plaintiffs elected to opt-out of underlying indirect purchaser class litigation and after intensive opt-out litigation, a successful, multi-million dollar settlement was achieved. Blue Cross Blue Shield of Michigan, et al. v. Aventis S.A., et al., Case No. 2:01-cv-72806 (E.D. Mich.).
• Represented large group of health insurance plans, including Kaiser, United Healthcare, Blue Cross and Blue Cross Blue Shield of Michigan, Blue Shield of Massachusetts, Blue Cross Blue Shield of Michigan, Blue Cross and Blue Shield of Minnesota, and Excellus Health Plan, Inc., in recovering alleged overpayments for pharmaceutical products, including Cardizem, due to alleged antitrust violations by pharmaceutical manufacturer. As Counsel for large group of Plaintiff class members in conjunction with complex antitrust litigation against Aventis S.A. and Andrx, sought and obtained recovery of overpayments made due to Defendants’ alleged anticompetitive conduct in the market for Cardizem CD. After extensive litigation, the case settled and multi-million recoveries were achieved for those electing to participate in the settlement, while others (as referenced above) elected to opt-out and pursued successful independent recovery litigation. In re: Cardizem CD Litigation, MDL No. 1278 (E.D. Mich.).
• Represented large group of plaintiff health insurance plans in recovery of overpayments due to alleged misconduct by laboratory services provider, SmithKline Beecham. As Counsel for large group of 37 Plaintiff insurance plans, successfully brought and litigated claims under federal civil RICO and state common laws against SmithKline Beecham for alleged overpayments made due to alleged misconduct in connection with the provision of laboratory services. After intensive litigation, a substantial settlement (confidential) was ultimately achieved. Blue Cross of California, et al. v. SmithKline Beecham, et al., Case No. 97-cv-01795 (D. Conn.).
• Represented large group of plaintiff health insurance plans, including opt-out group, in recovery of overpayments due to alleged marketing fraud by pharmaceutical company, Knoll Pharmaceutical Company/BASF. As Counsel for large group of 18 Plaintiff health insurance plans in connection with complex litigation, successfully brought and litigated claims against Knoll Pharmaceutical Company/BASF seeking recovery of overpayments due to alleged anticompetitive conduct of Knoll by misleading physicians and patients into keeping patients on Synthroid despite knowing that less costly, but equally effective drugs were available. This case resulted in a settlement with Knoll and its parent company, BASF Corporation, on behalf of a class of all consumers who purchased Synthroid. Blue Cross and Blue Shield of Massachusetts, Blue Cross Blue Shield of Michigan and Blue Cross and Blue Shield of Minnesota – opted-out and filed their own case, which ultimately settled on favorable terms. In re: Synthroid Marketing Litig., Case No. 1:97-cv- 06017 (N.D. Ill.).
• Represented group of corporate claimants in connection with antitrust class action settlement in federal court based on alleged anticompetitive conduct in the domestic market for drywall. As Counsel for group of individual corporate class claimants (both direct and indirect purchasers), successfully pursued claims recovery in connection with nationwide antitrust case settlement involving allegations that defendants engaged in a conspiracy to fix the prices of drywall products, including a settlement for one individual client in excess of $4 million. In re Domestic Drywall Antitrust Litigation, MDL No. 2437, Case No. 2:13-md-02437-MMB (E.D. Pa.).
• Represented Plaintiffs, Bridgestone, Firestone, Bandag, and Pirelli, in antitrust litigation in federal court alleging antitrust injury due to alleged anticompetitive conduct by defendants, Chemtura Corporation and Uniroyal Chemical Company, et al. in the market for rubber chemicals. As Counsel for purchasers of rubber chemicals, successfully pursued antitrust litigation in federal court against various manufacturers of rubber chemicals. Case successfully resolved in settlement following protracted litigation. In re: Rubber Chemicals Antitrust Litigation, Master Docket No. C04-01648 MJJ, Case No. C06-05700 MJJ (N.D. Cal.)
• Represented group of corporate claimants in connection with antitrust class action settlement in federal court based on alleged anticompetitive conduct in the market for optical disc drives. As Counsel for group of individual corporate class claimants, successfully pursued claims recovery in connection with nationwide antitrust case settlement involving allegations that defendants engaged in a conspiracy to fix the prices of optical disk drives. In re: Optical Disk Drive Antitrust Litigation, Case No. 3:10-md-2143-RS (N.D. Cal.).
• Represented group of corporate claimants in connection with antitrust class action settlement in federal court based on alleged anticompetitive conduct in the market for trans-Pacific airline tickets. As Counsel for group of individual corporate class claimants, successfully pursued claims recovery in connection with nationwide antitrust case settlement involving allegations that defendants engaged in a conspiracy to fix the prices of trans-Pacific airline tickets. In re: Transpacific Passenger Air Transportation Antitrust Litigation, MDL No. 1913, Case No. 3:07-cv-05634-CRB (N.D. Cal.).
• Represented group of corporate claimants in connection with antitrust class action settlement in federal court based on alleged anticompetitive conduct in the market for lithium ion batteries. As Counsel for group of individual corporate class claimants, successfully pursued claims recovery in connection with nationwide antitrust case settlement involving allegations that defendants engaged in a conspiracy to fix the prices of lithium ion batteries. In re: Lithium Ion Batteries Antitrust Litigation, MDL No. 2420, Case No. 13-md-02420-YGR (N.D. Cal.).
Other Notable Matters
• Representation (pro bono) of Death Row inmate Crosley Green, overturning capital murder conviction and granting of petition for writ of habeas corpus, freeing him after 32 years of incarceration based on a wrongful conviction. Post-Conviction Counsel in pro bono/death penalty case for Florida inmate, Crosley Green, who had been sentenced death and confined on “Death Row,” awaiting execution, for 19 years. As a result of our team’s initial efforts, Mr. Green’s death sentence was set aside/vacated and through subsequent efforts, won habeas corpus relief for Mr. Green from the U.S. District Court for the Middle District of Florida. The State of Florida appealed the district court’s grant of habeas corpus and, in April of 2021 – after roughly 32 years of wrongful incarceration, Mr. Green was freed pending the 11th Circuit’s ruling on the State of Florida’s appeal. The case has garnered significant national media attention, including multiple episodes of CBS’s 48 Hours exclusively devoted to case developments. State of Florida v. Crosley Green in State of Florida v. Crosley Green, Case No. 051989CF004942AXXX (Cir. Ct. 18th Jud. Cir., Brevard Co., FL); see also, Green v. Secretary, Department of Corrections et al., No. 6:14- cv-00220-RBD-TBS (M.D. Fla.); Green v. Secretary, Department of Corrections, No. 16-10633 (11th Cir. 2017); and Green v. Secretary, Department of Corrections et al, No. 6:14-cv-00330- RBD-TBS (M.D. Fla. July 27, 2018).
• Represented multiple witnesses in civil commercial banking dispute between Santander Bank, N.A. and Revere. Lead Counsel for various former employees of Santander Bank, N.A. in connection with civil banking dispute involving commercial lending. Santander Bank, N.A. v. Revere Bank, No. 1:17-cv-01564 (D. Md.).
• Represented multiple witnesses in civil commercial banking dispute between Santander Bank, N.A. and Branch Banking and Trust Company (BB&T Corporation). Lead Counsel for various former employees of Santander Bank, N.A. in connection with civil banking dispute involving commercial lending. Santander Bank, N.A. v. Branch Banking and Trust Company (BB&T Corporation), No. 1:17-cv-01669 (M.D. Pa.).
• Represented multiple witnesses in criminal prosecution and related civil action against former borrowers of Santander Bank, N.A. Lead Counsel for various former employees of Santander Bank, N.A. in connection with criminal prosecution and civil actions involving former credit/loan recipients of Santander Bank, N.A. United States v. Mark Gaver and Gaver Technologies, Inc., No. RDB-17-0640 (D. Md.).
• Represented (pro bono) indigent tenant seeking relief from inhabitable housing. Co-Lead Counsel in pro bono case advocating for rights and successfully obtaining relief for indigent tenant from lease of inhabitable apartment. The Barac Co. v. Claudia Deloatch, LTB 035683 (Sup. Ct. D.C. 2014)
• Represented individual plaintiffs seeking recovery of alleged medical malpractice damages against the federal government under the Federal Tort Claims Act (FTCA). Lead Counsel for individual patient (also a civilian nurse) and her spouse as plaintiffs in litigation asserting claims for damages under the FTCA for injuries suffered allegedly due to medical malpractice (medication error) by providers at Evans Army Community Hospital at Fort Carson in Colorado Springs, CO. Case resolved through settlement following litigation proceedings in federal court (commenced subsequent to exhaustion of administrative proceedings). Monika Nickerson, et al. v. United States, Case No. 1:03-cv-00909 (D. Col.).
• Represented individual plaintiffs seeking recovery of alleged medical malpractice damages against the federal government under the Federal Tort Claims Act (FTCA). Lead Counsel for individual patient (civilian) and his spouse (an Army physician) as plaintiffs in litigation asserting claims for damages under the FTCA for injuries suffered allegedly due to medical malpractice (medication error) by providers at Walter Reed Army Medical Center in Washington, DC. Case resolved through seven figure settlement. Matthew Dahl, et al. v. United States, (D.D.C.).
• Represented United States (while assigned, as Navy JAG, to the U.S. Attorney’s Office for the District of Maryland) in medical malpractice case brought under the Federal Tort Claims Act (FTCA). As Co-Lead Counsel (along with civilian Assistant United States Attorney) tried complex medical malpractice case (alleging obstetrical malpractice/wrongful death) to successful defense judgment in favor of the U.S. Government/U.S. Department of the Navy. Keila Duncan, et al. v. United States, Case No. 97-cv-01248 (D. Md.).
(*All presenter or co-presenter and all live/in-person unless noted otherwise.)
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