Advanced Forum on False Claims and Qui Tam Enforcement

Registration and Continental Breakfast

Opening Remarks from Conference Co-Chairs

Keynote Address

False Claims Act Enforcement State of the Union: The Politics and Policies of Enforcement

The volume of financial recoveries by the DOJ for fiscal year 2018 amount to a reported total of $3.7 billion in FCA settlements to date. This session will explore how the False Claims Act continues to be one of the most powerful weapons to combat fraud against the government and how its application Is evolving. Points of discussion will include:

• Analyzing the Trump Administration’s policies and priorities relative to FCA enforcement
• Evaluating the significance of Senator Grassley’s criticisms of recent case law interpreting Escobar and his efforts to reestablish the FCA as “the most effective tool to combat government fraud”
• Assessing other federal and state legislative activity
• Evaluating the DOJ’s FCA reform efforts, including an initiative to award companies credits for implementing effective compliance and ethics programs

In the Aftermath of Escobar: Determining Whether Regulatory Violations Are Material to Government Reimbursement

In the two years that have passed since the Supreme Court rendered its iconoclastic decision in Universal Health Services v. Escobar, Federal Courts have struggled with the applicability and interpretation of the Escobar materiality standard. As a result, practitioners grapple with the new standard of proof required for the implied certification theory of liability under the False Claims Act. This session will consider Escobar’s most recent progeny and dissect the evolving principles of materiality in the aftermath of this decision. Points of discussion will include:

• Interpreting the Ninth Circuit’s materiality ruling in Gilead Sciences in view of Escobar and its progeny
• Anticipating the Solicitor General’s recommendation
• Analyzing how materiality or lack thereof overturned extraordinary recoveries in Trinity Industries and Salus Rehabilitation
• Reconciling whether government intervention is material to the government’s payment decision in the wake of Genetech, Inc. and Prather

Morning Coffee Break

A Tale of Two Memos: Devising Strategies to Avoid Dismissal in View of the Granston and Brand Memoranda

It was the best of times, it was the worst of times…it was the epoch of belief, it was the epoch of incredulity…and so begins our story when in January 2018, two memos emerged from the Department of Justice, effectively providing False Claims Act defendants with novel tactics to avoid litigation. The Granston Memo outlined the DOJ’s dismissal authority, while the Brand Memo discussed restrictions on the use of guidance documents by government litigators in an affirmative civil enforcement action. This panel will explore the recent uses of these memoranda by defense counsel and consider the possible impact on future actions.

• Understanding the Granston Memo’s causes for dismissal
• Reviewing provisions of the Brand Memo which signify that guidance documents cannot create additional legal obligations
• Defining how the interaction between these two memoranda will impact the number of FCA and Qui Tam actions filed

Networking Luncheon

The Dollars, Cents and Sense of FCA and Whistleblower Observation and Defense: Aligning Litigation Costs with Sound Business Practices and Compliance Mandates

Senior corporate counsel from some of the most targeted industries will discuss how they manage and minimize the risk of false claims litigation. These in-house attorneys will categorize the obstacles to resolving such complex challenges and also evaluate the economic considerations associated with these tasks as they seek not only to diminish reputational harm, but financial risk as well.

• Examining business perspectives on internal case assessment
• Analyzing settlement considerations, e.g., potential criminal exposure, future targeting, damages, litigation costs and individual liability in light of the Yates Memo
• Managing public relations optics and addressing reputational risk
• Deciding who should carry-out post filing investigations
• Streamlining the litigation management process

FIRESIDE CHAT WITH RELATOR’S COUNSEL

From Initiating the Complaint to Government Intervention or Declination and Everything in Between

The False Claims Act empowers the U.S. Government to identify and prosecute fraud. Qui tam relators, represented by counsel help investigate and prosecute these cases. This session will consider ways in which relators’ counsel and government attorneys work together. Points of discussion will include:

• Analyzing how relators and the government combine their efforts to achieve faster and better results
• Distinguishing cases when the government intervenes from when the government does not intervene, and exploring the related impact on settlement
• Understanding pervasive concerns independent of the government’s decision to intervene, e.g., relator releases, stolen documents and employment considerations

Afternoon Refreshment Break

Judicial Perspectives on Dismissals Granted Due to Lack of Specificity under Rule 9(b)

A distinguished jurists with in-depth experience in False Claims and Qui Tam matters will examine decision-making practices in these cases and provide sage advice for both in-house attorneys and their outside counsel. Judge Young will discuss the impediments to resolving such complex contests and offer insights your most unyielding dilemmas.

• Reviewing recent cases where dismissals were granted for relator’s failure to allege fraud with particularity

INDUSTRY FOCUS ON FCA CHALLENGES

Champagne Roundtables

Cap off the first day of the conference as you network with your peers at industry-specific roundtables. Casually discuss the expansion of the reach of False Claims Act, new industries affect, and recent False Claims trends and developments.

• Healthcare, Life Sciences and Pharmaceuticals
• Technology and Communications
• Defense & Aerospace
• For-Profit Education
• Financial Services

Conference Adjourns to Day Two

Co-Chair’s Opening Remarks and Re-Cap of Day One

A STUDY OF INTERVENTION

Understanding the Government’s Evaluation of a Qui Tam Action

When a relator files a False Claims Act case on behalf of the government, the DOJ must decide whether to decline or intervene. This session will examine the decision making process behind intervention and declination.

• Assessing the impact intervention has on relator’s eventual recoveries, and review recent and impactful cases
• Understanding Section 370(C)(2)(A) of the FCA, which grants the attorney general the authority to dismiss a Qui Tam action over a relator’s objection
• Reviewing the effect of government declination on the first-to-file bar

PARALLEL INVESTIGATIONS

Assessing the Scope of Discovery and Preserving the Right Against Self-Incrimination

Since 2012, the Holder Memo mandated collaboration between civil and criminal enforcement actions “to the fullest extent appropriate to the case and permissible by law”. In response, defense counsel quickly turned their focus to discovery challenges resulting from parallel investigations. This panel will explore various stakeholder’s perspectives on the obstacles and dilemmas resulting from parallel investigations.

• Reviewing the DOJ’s recent policy advising against “piling on”
• Understanding the ramifications of the call for civil and criminal US Attorneys to coordinate with one another in parallel investigations in order to ensure fair outcomes proportionate to the wrongdoing at hand
• Assessing the administration’s focus on streamlining the enforcement of the FCA

Morning Coffee Break

Evaluating the Suitability of Statistical Sampling as a Means to Establish Liability Under the False Claims Act

The use of statistical sampling by the DOJ to prove violative behavior under the FCA is becoming increasingly popular. This session will explore the use of statistical methodology.

• Reviewing some courts aim to narrow the scope of the sampling methods
• Evaluating whether certain claims upon which relief is being sought was actually and knowingly false within the meaning of the False Claims Act
• Comparing recent rulings from various Districts
• Weighing in on the relator’s ability to meet their burden of proof with or without the aid of statistical sampling

Networking Luncheon

Effectively Negotiating False Claims Act Settlements: Developing Strategies to Reach a Favorable Agreement with the Government

The great majority of intervened False Claims Act cases, and a mounting number of non-intervened cases, are eventually resolved through negotiated settlements. This panel will address strategies employed by defense and relator’s counsel to achieve favorable settlements in both intervened and non-intervened FCA cases.

• Evaluating key provisions in FCA settlement agreements to fit your company’s circumstances
• Reviewing the implications of the recent tax reform law (Tax Cuts and Jobs Act of 2017) deductibility provisions on FCA settlements
• Understanding discounts provided when negotiating settlements and what the DOJ considers “cooperation”

Beware of the Expanding Reach of the FCA: A Survey of New At-Risk Industries and Emerging Theories of Liability

In the past twelve months, potential risk areas of FCA exposure have emerged in various industries – some of which are not traditional FCA targets. New DOJ policies in addition to an increasingly aggressive relators bar has the potential to meaningfully change the shape of FCA enforcement in 2019 and beyond. Join us as we discuss:

• Anticipating the AseraCare decision and its impact not only on hospice fraud prosecution, but False Claims cases more broadly
• Reviewing cases where a failure to implement cybersecurity measures led to False Claims liability for defense contractors
• Evaluating “new” vulnerable industries, e.g., private equity firms, tech and communications entities
• Assessing incipient theories of liability

Afternoon Refreshment Break

Ethical Considerations for the FCA Litigator

This session will provide you with best practices for managing effective internal investigations, as well as consider ethical dilemmas that arise during False Claims Act investigations.

Conference Concludes