Bank, Bholan and Kaiser Secure Pre-answer Dismissal

September 17, 2020 | Compliance Investigations & White Collar

Brian Bank, Michelle Bholan and Geoffrey Kaiser secured pre-answer dismissal of various False Claims Act claims brought against three New York nephrologists by a relator, also a nephrologist.

The action, which the relator brought on behalf of the United States of America under the False Claims Act’s qui tam provisions, alleged two theories against the Firm’s clients – first, that they caused a vascular access center to submit false claims to the U.S. Government’s Medicare and Medicaid programs by referring patients to the center despite knowing of the center’s fraudulent practices, and, second, that they themselves submitted false claims for capitation payments in connection with their treatment of those patients.

The Firm successfully argued that the relator’s complaint failed to plead the claims with the particularity required by Rule 9(b) and that recent Second Circuit case law did not relax this obligation with respect to alleging a defendant’s fraudulent scheme.

Finding that the complaint lacked “any specific factual allegations as to the alleged fraudulent conduct by” the Firm’s clients, the Court declared the claims legally insufficient and dismissed them with prejudice.

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