United States First Circuit

In a fraud action brought under the False Claims Act, district court judgment is affirmed in part and reversed in part where: 1) the district court did not err in dismissing the kickback claims attributable to plaintiff McClellan and holding that McClellan did not qualify as an original source under the Act); 2) the court erred in dismissing the kickback claims attributable to plaintiff as plaintiff provided details that identified particular false claims for payment that were submitted to the government in satisfaction of Federal Rule of Civil Procedure 9(b); and 3) the district court did not err in dismissing the "off-label" promotion claims.

Appellate Information

• Decided 08/12/2009
• Published 08/12/2009

Judges

• TORRUELLA, Circuit Judge., Before TORRUELLA, Circuit Judge, SILER,Senior Circuit Judge, and HOWARD, Circuit Judge.

Court

• United States First Circuit

Counsel

• For Appellant:
  
• Jan R. Schlichtmann, Beverly, MA, with whom Paul Simmerly, Heman Recor Araki Kaufman Simmerly & Jackson, PLLC, Bellevue, WA, Robert Foote, Mark Bulgarelli, Foote Meyers Mielke & Flowers, LLC, Geneva, IL, Kathleen Chavez, and Chavez Law Firm, PC, Aurora, IL, was on brief for appellants., Jamie Ann Yavelberg, with whom Charles W. Scarborough, Douglas N. Letter, Attorneys, Appellate Staff, Civil Division, Gregory G. Katsas, Assistant Attorney General, and Michael J. Sullivan, United States Attorney, was on brief as amicus curiae for the United States., Cleveland Lawrence III, on brief as amicus curiae of Taxpayers Against Fraud Education Fund in support of appellants.


• For Appellees:
  
• Ethan M. Posner, with whom Patrick S. Davies, Jennifer L. Saulino, Washington, DC, Andrew W. Lamb, Covington & Burling LLP, Washington, DC, Susan L. Burke, and Burke O'Neil LLC, was on brief for appellee.