March 27, 2023
WLC member and whistleblower lawyer Erica Hitchings was honored to be a co-chair of this year’s ACI False Claims Act and Qui Tam Enforcement. Jody Hunt of Alston & Bird and Adam Tarosky of Nixon Peabody joined Erica as co-chairs. The special keynote address was by Michael Granston, Deputy Assistant Attorney General, at the Department of Justice.
ACI’s annual conference brings together practitioners from all parts of the FCA bar: defense, in-house, government, and whistleblower lawyers.
The topics and conversation were plentiful and provoking. Below are just a few highlights.
Erica had the privilege of moderating a panel focused on developments within the relator, or whistleblower lawyer, bar. With her on the panel were fellow relator’s counsel, Josh Russ of Reese Marketos and Andrew Miller of Baron & Budd.
Erica, Josh, and Andrew each reflected on their path to representing whistleblowers and their love of the practice. As a whistleblower lawyer, Erica explained that she not only gets to fight fraud, but she also has the privilege of representing courageous individuals.
Josh and Andrew are each accomplished trial attorneys. They noted that relator’s counsel are aggressively litigating more declined cases. In fact, as we have noted before, recoveries in declined FCA cases recently outstripped those in intervened matters for the first time ever.
Josh pointed out that relator’s counsel can often carry a good case forward. This frees up government attorneys and resources for other matters. Or, sometimes relator’s counsel are eager to push forward a new theory of liability. The government may not oppose the theory (it can move to dismiss it if they do), but it may have other priorities. This is why the FCA allows whistleblowers to proceed even if the government declines. It embodies the public-private partnership underlying the law.
In 2020, DOJ announced that it would increase enforcement of the False Claims Act against private equity firms. And they have. The panel covered several federal FCA settlements with PE firms, including a $21 million resolution in 2019.
But it’s not just the federal government. The Massachusetts Attorney General’s Office has been at the forefront of this push, including a settlement with South Bay Mental Health Center and its private equity investor. That settlement was the largest publicly-disclosed government health care fraud settlement in the nation involving private equity oversight of health care providers.
Kevin Lownds, Deputy Chief of the Massachusetts AG’s Medicaid Fraud Division, shared his zeal for pursuing these cases. Defense counsel panelists then provided mitigation tips for PE firms. And, rounding out the group, relator’s counsel Caitlin Silhan offered up lessons that she learned while litigating the South Bay case.
After a day full of intellectual debate, everyone needed to get out of the conference room and enjoy a good meal. No problem, plenty of options to feed and entertain this group of hungry whistleblower counsel. Til next year!
