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Erica B. Hitchings

Erica Blachman Hitchings became a member of the Whistleblower Law Collaborative, LLC after nearly nine years in the U.S. Department...

The Federal False Claims Act

The False Claims Act is the U.S. Government’s primary weapon for combatting fraud. It allows whistleblowers to sue persons or...

Erica Hitchings Explains How to Prove Knowledge as a Guest on Public Disclosure Podcast

Erica Blachman Hitchings appeared as a guest on Ropes & Gray LLP’s podcast, Public Disclosure:  A guide to the False Claims Act.  Public Disclosure is hosted by Ropes and Gray Litigation Partner Kirsten Mayer. On today’s podcast episode, Erica Hitchings and Kim Friday, a partner at Osborn Maledon, discussed the nuts and bolts of proving a company’s knowledge.  They also shared their insight into what DOJ and whistleblowers look for when they are building and evaluating a case.

Notably, under the False Claims Act, a whistleblower or the government must establish that the defendant acted with scienter or “knowingly”–defined to include actual knowledge, deliberate ignorance, and/or reckless disregard.  31 U.S.C. Sec. 3729(b)(1).

Erica Hitchings identified four categories of evidence that can help prove knowledge: 1) The “CYA” emails from a manager repeatedly directing a lower level employee to do something improper, but with a “stock statement” designed to shift the blame to that lower level employee. For example, “Oh, but of course use your medical judgment”; 2) unfollowed compliance policies; 3) failure to utilize the data that is available to identify potentially problematic billing or other practices; 4) after-the-fact justifications that do not reflect “contemporaneous thinking.”

Listen to the full podcast here

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