January 19, 2024
Two thousand twenty-three was a benchmark year, marking 20 years since Whistleblower Law Collaborative LLC co-founders Robert M. Thomas, Jr. and Suzanne E. Durrell joined forces to represent whistleblowers in fraud cases. The year was bookended by Law360 choosing WLC as a Health Care Group of the Year in February 2023, and Fortune and Forbes magazine featuring WLC in an article “Righting Wrongs” in the December 2023/January 2024 issues.
During the year, the firm’s clients achieved several False Claims Act settlements helping the government recover millions of dollars, Best Lawyers® named WLC a Best Law Firm, WLC’s members were recognized for excellence and were actively engaged as thought leaders and commentators, and WLC supported several important community missions. As the firm wraps up 2023, it is proud of the many accomplishments it achieved this year and over the course of its 20-year history. It is honored to represent whistleblowers in their journeys. WLC looks forward to many more years partnering with whistleblowers and the government to fight fraud.
In 2023, the top Whistleblower Law Collaborative False Claims Act cases brought by our clients returned millions to the federal government in settlements and recoveries. The cases protected the federal fisc as well as patients. These settlements included:
BioTelemetry, Inc. and related company LifeWatch Services, Inc., two ambulatory heart monitoring companies, paid $13 million to settle allegations that they overbilled federal health programs for mobile cardiac telemetry services. Our client revealed Defendants’ fraud by filing a complaint under the False Claims Act in July 2018 in the federal court for the District of New Jersey. He alleged that Defendants ignored their customers’ instructions and billed for something the doctors did not want. This cost taxpayers money because telemetry was much more expensive, and it hurt patients because they often ended up with higher copayments.
Our health care system is based on doctors choosing the level of care appropriate for their patients. It undermines this system and costs taxpayers if companies design systems that make it harder for physicians to order only necessary services and also use their sales force to mislead health care practitioners, as we allege happened here.
– Philip R. Sellinger, United States Attorney for the District of New Jersey
Massachusetts Eye and Ear Infirmary paid $5.7 million to settle allegations that it made improper incentive payments to certain physicians in violation of the Physician Self-Referral Law (commonly known as the Stark Law) and the Anti-Kickback Statute (“AKS”). Because of these illegal financial relationships, when the physicians referred their patients to MEEI for procedures and MEEI submitted claims to government health care programs such as Medicare, it violated the False Claims Act.
Stark Act violations drive up the overall costs of the health care system due to fraud and abuse. We will continue to vigorously investigate False Claims Act violations arising out of improper financial relationships between hospitals and physicians.
–Joshua Levy, Acting United States Attorney for the District of Massachusetts
ZOLL Medical Corporation, headquartered in Massachusetts with locations in Rhode Island, paid the United States $400,000 to resolve allegations that it violated the Trade Agreements Act (TAA). The United States contended that ZOLL sold replacement echocardiogram (ECG) cables to various federal government purchasers (including the Department of Defense) and, when doing so, represented that the cables had been made in the United States. ZOLL knew, however, that the cables were actually manufactured in China. These cables were purchased for use with cardiac monitors and defibrillators. The false representations occurred from January 2019 through November 2022. TAA violations are just one type of government procurement or defense contractor fraud. Under the TAA, goods sold to the military or federal government purchasers must be made in America or certain designated foreign countries. China is not such a country.
When corporations choose to supply the American military and American government agencies with goods, the law is clear: we expect those goods to be American made. When companies fail in their legal duty by substituting foreign products for the U.S.-origin goods that the law requires, we will hold them accountable.
– Zachary A. Cunha, United States Attorney from the District of Rhode Island
As noted above, in February 2023, WLC was honored to be recognized as a Law360 Health Care Group of the Year. It was the only whistleblower firm selected for this award. Later in 2023, Whistleblower Law Collaborative was also recognized as a Best Law Firm by Best Lawyers®. And two of its members, Erica Blachman Hitchings and Suzanne Durrell were again recognized as Best Lawyers®.
Other honors during 2023 included co-founder Suzanne Durrell being named a fellow of the American Bar Foundation; co-founders Bob Thomas and Suzanne Durrell, as well as David Lieberman again being named Massachusetts Super Lawyers; Boston Magazine naming several of the firm’s attorneys Top Whistleblower Lawyers of 2023; and the firm’s administrator, Melissa Tremblay, receiving Massachusetts Lawyers Weekly’s award for Excellence in Firm Administration/Operations.
Bob Thomas and Erica Blachman Hitchings continued teaching at Boston University School of Law. Bob taught Whistleblower Law and Practice as well as Constitutional Law. He just finished his thirteenth year at the University. Erica has been teaching the popular course Health Care Fraud & Abuse since taking it over from Bob in 2020. See this recent retrospective piece (at p. 9) that looks back to 2010 when the law school was looking for someone to teach law students about health care fraud and abuse, and Bob Thomas launched the popular course.
WLC members were active in professional conferences and speaking engagements. Erica served as co-chair of the 2023 American Conference Institute (ACI) False Claims Act and Qui Tam Enforcement conference. She and Bruce Judge also spoke at the Federal Bar Association’s Annual Qui Tam Conference.
Linda Severin spoke in March about our Mallinckrodt settlement, a False Claims Act 101 with Case Study at the Forensic Accounting and Money Laundering Detection/Disruption Conference.
WLC was an active participant in The Anti-Fraud Coalition (TAF or TAF Coalition) 23rd Annual Conference held October 18-20, 2023, in Washington, D.C. WLC members spoke on important topics including Medicare Advantage Fraud and the Anti-Kickback Statute. The firm’s experienced Advanced Certified Paralegal, Kelly Shivery, joined a panel focused on Crossing the Bridge from Intake to Service of the Complaint and managing all of the steps in between for the successful launch of a case.
WLC members were frequently sought out by the media for comment on and analysis of important developments in the law. David Lieberman was recently quoted in Law 360’s discussion of the fallout from the Supreme Court’s important FCA SuperValu decision. SuperValu is a recent 9-0 Supreme Court ruling rejecting the controversial conclusion — championed by defendants — that the FCA does not punish legal violations if they follow an “objectively reasonable,” legal interpretation, even a defendant knew their interpretation was wrong. That interpretation threatened to entirely undermine False Claims Act enforcement by permitting defendants to knowingly violate the law so long as they could find a lawyer who would later argue the interpretation complied with the language of the law.
The Capitol Forum sought Erica Blachman Hitchings’ perspective on the case in which Humana, the second largest Medicare Advantage insurance provider in the country, sued the U.S. government to block the Medicare clawback rule. It did so after an audit by the U.S. Department of Health and Human Services (HHS), Office of Inspector General, found that Humana had overcharged the Medicare program $200 million in just one year! The clawback rule allows Medicare to recoup overpayments by extrapolating findings from audits. Erica was ideally positioned to comment on this case given her prior role as a federal prosecutor where she spearheaded investigations of two major Medicare Advantage insurers. One case yielded a $90 million settlement. The other is in litigation, with over $1 billion in damages alleged by the government.
Bob Thomas was featured in a powerful Massachusetts Lawyers Weekly piece about cryptocurrency fraud where the government actively encourages crypto whistleblowers to come forward. The article, “Attorneys Note Rise in Cryptocurrency Whistleblowers” dove into what the author deemed the “age of the crypto whistleblower[s]” and highlighted an announcement from the CFTC’s Whistleblower Office alerting individuals that they may be eligible for a financial reward if they provide information about fraud and the manipulation of cryptocurrency. The article noted that both the SEC and the CFTC have played active roles in “bringing some law and order to what has been a largely unregulated digital assets industry.”
The firm was proud to support several important missions in 2023. These included: The Women’s Bar Association Gala in October as it celebrated its anniversary and 45 years of working for the advancement of women. In 1978 when the WBA was founded (and WLC co-founder Suzanne Durrell graduated from law school), less than 10% of attorneys in the U.S. were women. Today 38% of attorneys in the U.S. are women.
Health Law Advocates held its 28th Annual Benefit Breakfast in November—focusing on fighting for health care justice and helping alleviate medical debt. Our firm once again supported HLA in its important work to bring medical access and equality in care to all.
The Anti-Fraud Coalition (TAF or TAF Coalition) 23rd Annual Conference held October 18-20, 2023, in Washington, D.C. Once again, WLC was a proud sponsor of this annual conference. We fully support TAF’s mission of to educate and empower whistleblowers and their attorneys to effectively use the federal False Claims Act and state false claims acts with their qui tam provisions, as well as other whistleblower programs.
WLC has helped the government recover over $6.8 billion related to fraud. Its work has played a significant role in its clients’ courageous journeys to bring illegal practices to light. WLC’s work has also had an impact in safeguarding public health and safety, reforming or changing industry practices, and protecting whistleblowers against retaliation.
Whistleblower Law Collaborative LLC, based in Boston, devotes its practice entirely to representing clients nationwide in bringing actions under the federal and state whistleblower laws and programs, False Claims Acts, and other whistleblower programs. If you are considering becoming a whistleblower or are aware of other types of fraud, contact us for a free, confidential consultation.