September 29, 2022
Massachusetts pharmaceutical company Biogen has settled an FCA case for $900 million. The case involves false claims made to both Medicare and Medicaid involving Biogen’s multiple sclerosis drugs. The complaint alleges that Biogen paid remuneration to doctors to prescribe the drugs in violation of the Anti-Kickback Statute (AKS). Notably, the case was declined by the government, but pursued by the whistleblower and his counsel.
Relator Michael Bawduniak began as a sales representative at Biogen from 2004 until rising to the position of Director of Regional Marketing Manager in 2012. He was then demoted after attempting the stop the payment of kickbacks to physicians designed to induce them to prescribe Biogen’s drugs. Mr. Bawduniak filed the qui tam lawsuit against Biogen in 2012. The complaint alleged that Biogen paid physicians speaker honoraria, speaker training fees, consulting fees and meals solely to induce them to prescribe the drugs Avonex, Tysabri and Tecfidera. The Relator contended these payments violated the Anti-Kickback Statute.
“This matter is an important example of the vital role that whistleblowers and their attorneys can play in protecting our nation’s public health care programs.”
– U.S. Attorney Rachael S. Rollins for the District of Massachusetts.
The government declined to intervene in July 2015. Thereafter, Mr. Bawduniak and his counsel spent the next seven years preparing the case for trial. Fortunately for Mr. Bawduniak, whistleblowers can win when going it alone. On the eve of trial, Mr. Bawduniak secured a blockbuster $900 million settlement. According to the DOJ’s press release, Biogen will pay $843,805,187 to the United States and $56,194,813 to 15 states. Bawduniak will receive approximately 29.6% ($250 million) from the settlement proceeds as his whistleblower reward. Mr. Bawduniak’s relator share is one of the largest in history.
In addition to recovering hundreds of millions of taxpayer dollars, the relator secured several important legal rulings. The district court rejected defendants’ argument that the “resulting from” language within the 2010 amendment required a one-for-one causal link between the kickback and the alleged claims. The Bawduniak court found “no support” for this interpretation, holding that “[i]t is sufficient to show that Defendant paid kickbacks to a physician for the purpose of inducing the physician to prescribe specific drugs, and that the physician then prescribed those drugs, even if the physician would have prescribed those drugs absent the kickback.” The court also held that “a violation of the AKS is per se a violation of the False Claims Act.”
If you have evidence that an individual or entity is violating the Anti-Kickback Statute, please contact us for a free and confidential consultation.