Court Urged to Dismiss FCA Suit That Threatens to Chill Speech

On January 4, 2010, WLF filed a brief in the U.S. Supreme Court, urging it to review (and ultimately overturn) an appeals court decision that permits plaintiffs’ lawyers to use the federal False Claims Act (FCA) as a tool for regulating all promotional activities of drug and medical device manufacturers. WLF warned that the decision threatens to suppress truthful speech about off-label uses of medical products approved by the Food and Drug Administration (FDA). WLF argued that the FCA was intended as a means of preventing fraud against the U.S. government, not as a means of suppressing truthful speech and other legitimate promotional activities. WLF argued that in the absence of specific factual allegations that a health care provider, acting at the behest of a drug manufacturer, sought payment under Medicaid or Medicare for drug costs that were not reimbursable, a complaint is subject to dismissal under Fed.R.Civ.P. 9(b), which requires fraud claims to be pled with “particularity.”