Author: Benjamin Greenberg

Benjamin Greenberg

Ben is a partner in Dorsey’s trial group who has represented clients in federal and state court proceedings, as well as administrative proceedings, across a wide range of industries, including construction, real estate, financial services, banking, education, health care and technology. He has also provided internal investigative assistance to companies regarding suspected violations of Federal Law.

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D.C. Circuit Weighs in on the FCA’s Anti-Retaliation Statute

Benjamin Greenberg

Last month, the D.C. Circuit revived a False Claims Act (“FCA”) retaliatory discrimination claim by a former employee of Howard University contending that she was fired by the University for objecting both internally and externally to the University’s alleged failure to maintain the humane laboratory animal living conditions on which the University’s receipt of federal funding was conditioned. See Singletary v. Howard University, No. 18-7158 (D.C. Cir. Sept. 20,...

Early Resolution of FCA Civil Damages Under the Eighth Amendment’s Excessive Fines Clause? A Pending Case in Washington May Provide the Answer

Benjamin Greenberg

The False Claims Act authorizes civil penalties between $10,781 to $21,563 per false claim, as well as three times the amount of damages which the government sustains (i.e. treble damages). The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court of the United States has recognized that a statutory penalty constitutes...

D.C. Circuit Upholds Public-Disclosure-Bar Dismissal Based On Information Posted to Websites

Benjamin Greenberg

Last week, the U.S. Court of Appeals for the D.C. Circuit upheld a district court’s dismissal of a qui tam action under the oft-litigated, “public disclosure bar,” where the transactions that gave rise to an inference of fraud were “available” on the internet. See United States ex rel Oliver v. Phillip Morris USA Inc., No. 15-7049 (D.C. Cir. June 21, 2016).  The public disclosure bar...

First Circuit Permits Supplementation of Complaint to Cure First-to-File Jurisdictional Defects

Benjamin Greenberg

The FCA first-to-file bar provides that if an action involving the same subject matter is already pending, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”  31 U.S.C. § 3730(b)(5).  Courts are thus deprived of jurisdiction to entertain opportunistic qui tam lawsuits based on facts similar to an already-filed lawsuit.  In May 2015, the...

Ninth Circuit Concludes that Conviction Precludes Relator Recovery

Benjamin Greenberg

The Ninth Circuit last week held that pursuant to 31 U.S.C. 3730(d)(3) of the False Claims Act (“FCA”), a qui tam relator who is convicted of conduct giving rise to the fraud that is the subject of the FCA lawsuit must be dismissed from the lawsuit and is not entitled to a share in any recovery, even if the relator played only a minor role...

D.C. Circuit Determines that Physical Possession of Medicare Records Not Required in Implied-Certification Claim Against the District of Columbia

Benjamin Greenberg

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court’s grant of summary judgment in favor of a relator based on the district court’s finding of a violation of the False Claims Act.  United States ex rel. Davis v. District of Columbia, No. 14-7060 (D.C. Cir. July 10, 2015). The relator’s FCA theory–implied-certification liability–relied on his allegation that...

Sixth Circuit Reminds Government of its Burden to Prove Actual Damages in False Claims Act Litigation

Benjamin Greenberg

Last week, the United States Court of Appeals for the Sixth Circuit vacated a federal district court’s award of $657 Million for treble damages under the False Claims Act (“FCA”), restitution, and prejudgment interest.  See United States v. United Technologies Corp., No. 13-4057, 2015 WL 1516215, *11-17 (6th Cir. Apr. 6, 2015).  The Sixth Circuit’s decision serves as a useful reminder that it is the...