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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.”