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Total Articles: 5

Third Circuit Confirms “But-For” Standard for Retaliation Claims Under the False Claims Act

Last month, the Third Circuit Court of Appeals held that an employee’s protected activity must be the “but for” cause of an adverse action to support a claim for retaliation under the False Claims Act (“FCA”). The Court further affirmed that the plaintiff’s constructive discharge claim did not establish an adverse employment action as a matter of law.

SEC Fines Company $265,000 for Severance Agreements that Potentially Chilled Whistleblowers

Company agreements with employees continue to be under fire. In the latest example, the Securities and Exchange Commission has issued a cease-and-desist order against BlueLinx Holdings Inc. over the use of severance agreements the agency found improperly interfered with the rights of potential whistleblowers to obtain monetary rewards for reporting suspected illegal activity. The August 10, 2016, Order included a $265,000 fine and other specific non-monetary remedies against the company.

District Court Holds False Claims Act Applies to Employee Allegedly Terminated for Engaging in Protected Activity Against Unrelated Former Employer

In a matter of first impression, the U.S. District Court for the Western District of Pennsylvania in Cestra v. Mylan Inc. No. 15-0873 (E.D. Pa., May 22, 2015) held that the antiretaliation provision of the False Claims Act applies to an employer who terminates an employee for engaging in protected conduct against an unrelated entity.

“Entirely Comfortable” With a “Monster”: A Striking Decision From an Unlikely Source About Excessive Fines Under the FCA

As we have discussed before, whistleblower and retaliation decisions—including from the Supreme Court of the United States—have created an increasingly whistleblower-friendly body of law that unifies courts across the ideological spectrum. Bunk v. Gosselin World Wide Moving, a recent decision from the Fourth Circuit Court of Appeals in Richmond, long considered an employer-and business-friendly court, is a striking addition to that body of law. Bunk interprets the civil penalties provision of the False Claims Act (FCA) broadly to allow exceptionally large fines.

First Circuit Dismisses FCA Claim For Failure To Plead Fraud With Particularity And Denies Further Amendments Of Complaint

On December 6, 2013, in U.S. ex rel. Helen Ge, M.D. v. Takeda Pharmaceutical Company Limited (No. 13-1088), the First Circuit Court of Appeals affirmed the dismissal of Dr. Helen Ge’s qui tam actions against her former employer, Takeda Pharmaceutical Company (Takeda). Ge claimed that Takeda terminated her employment when she complained about improper reporting of “adverse events” related to several drugs that Takeda sold. The court dismissed her qui tam actions, which she brought under the federal False Claims Act (FCA), on the basis that Ge failed to plead fraud with particularity. The court also affirmed the denial of Ge’s requests to amend her complaints.
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