Michael Filoromo Discusses FCA with Cafepharma
Katz Banks Kumin partner Michael Filoromo was interviewed by cafepharma.com for a series of articles on common employment law questions among employees in the pharmaceutical industry. The second article in the series, published September 9, 2016, entitled, “When Things Go Wrong With Your Job – Interview with an Employment Attorney, Part Two,” discussed the False Claims Act (FCA) retaliation claims and other common whistleblower protections applicable to the pharmaceutical industry.
Discussing the components of the FCA, Mr. Filoromo said, “…the False Claims Act has two key components relevant to whistleblowers. One is the Qui Tam component, where an individual can bring suit on behalf of the government to recover money that has been obtained fraudulently. In the context of the pharmaceutical industry, that often arises in the context of off-label marketing for drugs or devices that are reimbursed by Medicare and Medicaid.”
He added, “The other component of the False Claims Act is the anti-retaliation provision. If an employee has complained about or attempted to stop a false claim for payment to the government, such as off-label marketing, kickbacks, etc., they may have a retaliation claim if they are disciplined or terminated as a result.”
When asked whether the strength of a Qui Tam claim can influence the success of a retaliation claim, Mr. Filoromo said, “In practical terms, it can. To be protected from retaliation, the employee only needs to have a good faith, reasonable belief that they are reporting or attempting to stop a violation of the False Claims Act. You don’t have to be correct about the violation. But, as you can imagine, whether or not the employee is right about the scope and seriousness of any wrongdoing has an impact on how a company or a court would value the claim.”
Mr. Filoromo continued, “If you’re confident something is wrong, it is worth raising the concern. But there are a lot of gray areas in highly-regulated industries, and that is certainly true in the pharmaceutical industry…An experienced attorney can help assess whether the behavior is really illegal.”
Mr. Filoromo concluded by urging readers “not to wait if you suspect wrongdoing or retaliation. There are deadlines for filing claims, so you don’t want to wait [until it’s] too late.” For more on the FCA and emerging issues in whistleblower law, read the full article here.