K&E's Lefkowitz Strikes Again for Defendants in Medicaid Fraud Case

Two years after his landmark U.S. Supreme Court win for generic drug makers in Pliva v. Mensing--and with another major pharmaceutical case about to be argued at the high court--Kirkland & Ellis partner Jay Lefkowitz is continuing to plow through a red-hot docket of pharma litigation.

A U.S. district court judge in Boston sided with Lefkowitz this week in a whistleblower suit against some two dozen drug companies, tossing allegations that the defendants violating the False Claims Act by falsely claiming that certain products (including pediatric popsicles and bubble gum flavored medicine) were eligible for Medicaid reimbursement. Qui tam plaintiff Constance Conrad and her lawyers at Bailey & Glaser alleged that the companies bilked the federal government out of more than $500 million.

Lefkowitz, who represents long-time client Teva Pharmaceuticals in the case, argued for all the defendants at a hearing on their motion to dismiss in November. Citing a provision of the FCA that bars claims based upon information that's publicly disclosed by the government, Lefkowitz maintained that the court lacked jurisdiction. Conrad's lawyers countered that while the information was made available in a government database, it wasn't publicized in a report, hearing record, audit, or investigation and therefore didn't meet the FCA's definition for disclosure.

Judge Rya Zobel didn't make much of that distinction. In a 14-page decision issued Monday, she held that the information fell within the broad ordinary meaning of a "report" and dismissed the complaint.

"Congress set up the False Claims Act to let private individuals who actually uncover fraud sue on the government's behalf," Lefkowitz said in an email. "The court made clear here that people who just repackage public information are not true whistleblowers."

Lefkowitz has making headlines recent months with his pharma industry representations (see here and here). He'll have a chance to make news again next month in a case that presents a threat to his win in Mensing, in which the Supreme Court held in April 2011 that federal drug labeling requirements preempt state law failure-to-warn claims. In Mutual Pharmaceutical Co. v. Bartlett, which Lefkowitz will argue March 19 at the Supreme Court, the U.S. Court of Appeals for the First Circuit created an apparent circuit split when it ruled that plaintiffs can pursue state law design-defect claims against generics. Last month, a federal district judge in Columbus, Ohio followed the First Circuit's example, declining to dismiss a design defect claim against Sandoz Inc.

Lefkowitz said that his preparations for the Bartlett case were going well and that he was headed soon to Washington, D.C. for a moot oral argument.

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