• Posts by Eric J. Buescher
    Partner

    Eric Buescher is a principal at Cotchett, Pitre & McCarthy, LLP where he works on fraud cases as well as water and land use litigation. Eric focuses on the federal and California False Claims Acts, financial elder abuse, and complex ...

CPM Wins in Whistleblower Award Decision in Virginia Supreme Court

In a decision of first impression in the state and federal appellate courts throughout the country, the Virginia Supreme Court issued an opinion in a case filed by CPM in 2007, Commonwealth v. Commonwealth ex rel. Hunter Laboratories, LLC (Va., Aug. 9, 2018, No. 170995) 2018 WL 3768538, holding that the whistleblower’s award under Virginia’s false claims act must be calculated based on the total amount of the settlement of a qui tam case, not just the portion retained by the state.

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On July 7, the Ninth Circuit issued an opinion in United States ex rel. Campie v. Gilead Sciences, laying out the standards for pleading plausible claims under Fed. R. Civ. P. 12(b)(6) in whistleblower cases filed under the False Claims Act.  United States ex rel. Campie v. Gilead Sciences, 2017 U.S. App. LEXIS 12163 (9th Cir. July 7, 2017) (“Campie”).

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The recent inundation of rainfall in the Bay Area notwithstanding, water use, conservation and cost remain contested and closely monitored issues of local governance. Local governments and utility departments are required to comply with several constitutional provisions in charging customers for electricity and water.  Included are Proposition 26, requiring two-thirds majority approval to charge amounts not related to the cost of electric service, and Proposition 218, requiring rates be proportionate to costs, absent voter approval for other charges.

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Originally heralded as one of the “Top 10 Residential Buildings in the World” and “An Address Like No Other,” San Francisco’s 58-story Millennium Tower obtained unanticipated notoriety when it was finally disclosed to the public and residents that the building has sunk 16 inches and is leaning 2 inches at its base. A wave of finger pointing ensued between the building developers and owners of the neighboring Transbay Terminal project, with dueling teams of experts blaming excessive dewatering, failure to drill down to bedrock, or other factors, for the unexpected settlement.  Whatever its cause, however, it is clear that the building’s developers knew the building was sinking yet did not disclose this vital information when selling units to unsuspecting homeowners.

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Mylan Business Practices Harm Consumers, Insurers and the Government

Mylan NV's EpiPen has made headlines recently, and not in a positive way. Outrage grew in August at a jaw dropping 500% price hike for its EpiPen epinephrine auto injectors. The EpiPen is a lifesaving device used to treat severe allergic reactions, or anaphylaxis. The device is essentially a spring loaded syringe that injects a dose of epinephrine into the thigh, even through clothing. 

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Seventh Circuit Holds Medicare Part D is Entitled to Lower Prices Offered by Pharmacies to Patients under Discount Programs

The issue of what constitutes a medical provider’s “usual and customary” price has been at the center of a litany of false claims act litigation, at both the state and federal levels.  When dealing with prescription drugs paid for by Medicare Part D, CMS states “where a pharmacy offers a lower price to customers throughout a benefit year” the lower price is considered the “usual and customary” price rather than “a one-time ‘lower cash’ price.”

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No Obstinacy, No Madness, and No Plaintiff “Pick Offs” Pre-Class Certification

The Ninth Circuit decided today that a named plaintiff in a representative action can still pursue class certification even if his individual claims are satisfied through a defendant’s “pick off” tactics and that a case cannot be deemed moot until the plaintiff is afforded a fair opportunity to show that class certification is warranted.

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Appellate Brief Filed in Surfrider Foundation’s Lawsuit to Restore Public Access to Martins Beach

Today, in the Surfrider Foundation’s litigation against the owner of Martins Beach, CPM filed its response brief in the appeal phase of the case.  After a full trial in 2014, Judge Barbara Mallach found the owner had violated the Coastal Act by blocking the public’s access to the popular surf spot just south of Half Moon Bay.

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In federal and California state courts, defendants often look to the “public disclosure bar,” 31 U.S.C. § 3730(e)(4)(A) and Cal. Gov. Code section 12652, subd. (d)(3)(A), to shield them from liability from claims brought under the Federal and California False Claims Acts. Not surprisingly, defendants routinely argue that the public disclosure bar should be broadly construed to bar claims that are only tangentially related to information publicly disclosed before the whistleblower (also called the “relator”) filed their false claims action.

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Court of Appeal Limits Public Disclosure Defense under the California False Claims Act

Under the California False Claims Act, like its federal counterpart, defendants often seek to have claims against them dismissed on the basis of the “public disclosure” bar, Cal. Gov. Code section 12652, subd. (d)(3)(A). The scope of the California False Claims Act’s public disclosure bar was recently considered by the Second District Court of Appeals, which explained that the bar is intended “to prevent parasitic or opportunistic actions by persons simply taking advantage of public information without contributing to or assisting in the exposure of the fraud.” State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1407.

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The federal government spent roughly 14% of its overall expenditures on Medicare in 2014. Included in those costs were significant money paid to rehabilitation companies and skilled nursing facilities to provide rehabilitation and care services to seniors. Given the massive amount of money being spent on those services, there is also an increasing amount of fraud, abuse and deception occurring, where dishonest providers are seeking to line their pockets with taxpayer dollars.

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New Year, New Rules: Changes to California Code of Civil Procedure

There have been significant changes to the California Code of Civil Procedure, all of which center on one unifying theme: judicial efficiency. Below are brief discussions of the changes to procedural statutes regarding demurrers, 998 offers, and summary judgment motions. 

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New Study Highlights Unfairness of Mandatory Arbitration

A recent study by the Economic Policy Institute on mandatory arbitration, compiling data from five years and over 1,200 cases administered by the American Arbitration Association, found that employees subject to mandatory arbitration agreements achieve lower rates of success and lower recoveries than similar claims adjudicated in federal and state courts.  Thus, employers who require arbitration as a condition of employment are able to decrease the potential consequences of later illegal or discriminatory conduct.  The study is available online here.

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Under most federal and state False Claims Act statutes, successful relators are entitled to a percentage “of the proceeds of the action or settlement of the claim.” Unfortunately, in some cases, the government tries to twist this language to prevent whistleblowers from receiving a share of all of the proceeds of their cases. Whistleblowers and their attorneys should fight such efforts.

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Judge Allows Whistleblower Case Against BP to Proceed

In an order issued August 14, 2015, Judge Curtis E.A. Karnow of the San Francisco Superior Court cleared the path for CPM and California Attorney General Kamala Harris to pursue whistleblower claims against BP (formerly British Petroleum) for overcharging the State of California on purchases of natural gas. The case was filed in 2012 by a former-employee of BP, under the California False Claims Act. California Attorney General Kamala Harris joined the case in late 2014. The case accuses the oil company of massive overcharging of California cities, counties, universities, and government agencies on purchases of natural gas over the course of the past decade.

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Unanimous Jury Award for CPM Client

CPM attorneys Justin Berger and Eric Buescher completed a jury trial on August 5, 2015, winning a unanimous verdict awarding damages of half a million dollars on behalf of a local small business owner in a hotly disputed breach of contract case.  The lawsuit centered around a lease agreement for an advertising billboard owned by Defendant Ad-Way Signs that is located on the plaintiff’s property.  The plaintiff, CPM’s client, alleged that Ad-Way had failed to pay full rent according to the lease between the parties, believing that Ad-Way was delaying and underpaying rent in an attempt to leverage the small business owner into entering into long term lease that was more beneficial to Ad-Way.  CPM’s client never budged, relying on the legal protections provided to commercial landlords by Civil Code sections 827 and 1945 to prevail.  CPM often represents small business owners who are victimized by greed.

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Topics: Firm News
$75.5 Million Settlement In Whistleblower Lawsuit Against Vmware, Inc.

The United States Department of Justice and Cotchett, Pitre & McCarthy, LLP announced today a $75.5 million settlement of claims against VMware, Inc. and Carahsoft Technology Corporation, in a False Claims Act case prosecuted by Cotchett, Pitre & McCarthy, LLP and the Law Office of Jeffrey F. Ryan on behalf of Relator Dane Smith. VMware is the market leader in “virtualization” technology, and the fifth-largest software company in the world. The action was filed in 2010 by Dane Smith, the former Vice President of Americas Sales for VMware. The settlement represents one of the five largest recoveries against a technology company in the history of the False Claims Act. 

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One of the most important factors in any case under the False Claims Act (federal or California), is whether the government decides to “intervene.” Oftentimes, however, when the government intervenes, it does not intervene on all of the qui tam plaintiff’s theories. The question then sometimes arises of how the non-intervened theories or claims should be treated. Defendants have argued that non-intervened claims must be dismissed. In fact, under both federal and California law, the qui tam plaintiff has full authority to proceed with non-intervened claims.  

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Victim Blaming is Never Okay – CPM Agrees with Former Irish President on Problematic Coverage of Balcony Collapse Tragedy

On June 16, the same day as the balcony collapse in Berkeley killed six people and seriously injured at least seven others, the New York Times published a story on the tragedy under the headline “Deaths of Irish Students in Berkeley Balcony Collapse Cast Pall on Program.”  The “pall” is not on the victims of this tragedy, nor on a program that has allowed thousands of Irish citizens to spend a summer living in the U.S.  The “pall” is on whoever is at fault in constructing and maintaining a balcony that should never have collapsed, and on those who would blame a party atmosphere for the tragedy, and who would resort to stereotyping and underhanded victim blaming.  

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Niall McCarthy and Eric Buescher recently published a chapter titled “Fighting Financial Elder Abuse in California” for the Thomson Reuters / Astapore Books publication, “Inside the Minds: Elder Law Client Strategies in California.”  The chapter describes the current state of financial elder abuse law in California and discusses strategies for plaintiffs to successfully prosecute civil financial elder abuse cases in a variety of contexts.  

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Topics: Elder Abuse
Judge Orders Vinod Khosla to Open the Gates to Martin's Beach Immediately

The owner of the property adjacent to Martin’s Beach has been ordered to immediately reopen public access to the beach. Judge Barbara Mallach of the San Mateo County Superior Court issued a final order today directing Vinod Khosla to open the gate blocking access to the way it was when he purchased the property.

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6th Circuit Says FCA Only Protects Whistleblowers in “Employmentlike Relationships"

The U.S. Court of Appeals for the Sixth Circuit held last week that the FCA does not bar prospective employers from discriminating against job applicants for having served as whistleblowers against different companies in the past.

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Coastal Use and Beach Access Rights in California: Lessons of Martin’s Beach

In a high-profile case with potentially national implications, a San Mateo County Superior Court judge sided in September with Cotchett, Pitre & McCarthy client Surfrider Foundation and ordered Silicon Valley billionaire Vinod Khosla to stop blocking public access to a Northern California beach used and enjoyed for nearly a century by families, fishermen, surfers, and other members of the community. Khosla had gated off a road leading from Highway One to the beach in 2010, two years after buying most of the land fronting the beach for $32.5 million.

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