Just before Christmas, the US Department of Justice (DOJ) released its summation of annual statistics on False Claims Act filings and recoveries for the past fiscal year. While the data and accompanying DOJ press release touted an impressive $2.8 billion in civil settlements and judgments, 2018 was far from a record year and in fact marked a continuing decline since a record-setting $6 billion in recoveries in 2014.

Notably, and as in years past, the vast majority of settlements and judgments involved the health care industry, with drug and medical device manufacturers, managed care providers, hospitals, pharmacies, labs and physicians accounting for a whopping $2.5 billion of the $2.8 billion total. DOJ notes that 2018 marks the ninth consecutive year that civil health care fraud judgments and settlements have exceeded $2 billion.

The DOJ’s press release highlighted some of the Department’s more notable recoveries, many of which we have discussed in alerts throughout the year:
$625 million from AmerisourceBergen Corporation in a drug repackaging scheme
$270 million from DaVita Medical Holdings to resolve liability for providing inaccurate information that inflated Medicare payments to Medicare Advantage Organizations
$210 million from United Therapeutics Corporation for utilizing a charitable foundation as an illegal conduit to pay Medicare patient co-pays
$33.2 million from Alere for a materially unreliable testing device
$23.85 million from Pfizer for utilizing a charitable organization as a conduit to pay Medicare co-pays

The DOJ’s press release also addressed some of the statistics related to whistleblower suits, noting that 645 qui tam suits were filed in 2018 (averaging 12 new cases each week) and that the government paid out of $300 million to whistleblowers, who, DOJ noted, “…play a vital role in unmasking fraudulent scheme that might otherwise evade detection.” The $300 million, however, reflects a drop-in payout that tracks the decline in settlements and judgments since 2014, and in fact marks the lowest payout to whistleblowers since 2009.

Finally, DOJ spotlighted some data that backed up its ongoing commitment to use the False Claims Act and other civil remedies to hold individuals, as well as corporations, accountable for their fraudulent acts, citing, among others, the $5 million settlement with Lance Armstrong as proof of their efforts.

Principal Deputy Associate Attorney General Jesse Panuccio framed the data, and DOJ’s position heading into 2019, by stating, “Every year, the submission of false claims to the government cheats the American taxpayer out of billions of dollars … Such fraud will not be tolerated by the Department of Justice.  The nearly three billion dollars recovered by the Civil Division represents the Department’s continued commitment to fighting fraudsters and cheats on behalf of the American taxpayer.”

For those who wish to peruse the statistics themselves, the data can be found here. We welcome your questions.

Brian Dickerson, FisherBroyles Partner
Brian E. Dickerson

Anthony Calamunci, FisherBroyles Partner
Anthony Calamunci

Nicole Waid, FisherBroyles Partner
Nicole Hughes Waid

Amy Butler, FisherBroyles Partner
Amy Butler