Author: Ben Kappelman

Ben Kappelman

Ben has represented clients asserting patent infringement and invalidity as well as disputing the assignment of patent rights and licensing of inventions. His trade secrets experience includes extensive analysis of the Uniform Trade Secrets Act as adopted by multiple jurisdictions. Ben also represents clients in the construction industry as well as Native American tribes and other governmental entities. Like those in his intellectual property practice, these clients face complex administrative regulatory regimes, which Ben helps them understand during litigation and as they strategically plan their business activities.

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Supreme Court Settles Circuit Split and Reads the False Claims Act Statute of Limitations Provision Broadly in Boon to Relators

Ben Kappelman

On May 13, 2019, the U.S. Supreme Court decided Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18–325, and resolved a circuit split regarding the statute of limitations for an FCA claim brought by a relator between six and ten years after a violation, but less than three years after the government knew or should have known the relevant facts. The Court held...

Sixth Circuit: Timing of Physician Certification for In-Home Care Remains Material After Escobar

Ben Kappelman

A divided panel of the U.S. Court of Appeals for the Sixth Circuit again revived an FCA suit against home-health services providers premised on the providers’ alleged improper procurement of physician medical necessity certifications supporting Medicare claims. In United States v. Brookdale Senior Living Communities, Inc., — F.3d —-, 2018 WL 2770598 (6th Cir. June 11, 2018), a nurse alleged she was hired by several...

Third Circuit: False Claims Act Liability Premised on an Anti-Kickback Statute Violation Requires Proof that at Least One Federal Claim Resulted from an Improper Referral or Recommendation

Ben Kappelman

Federal scrutiny of charities that assist patients with accessing prescription drugs has increased with rising prescription drug prices.  Some prescription drug charities receive funding from medical providers or drug manufacturers, which can raise questions about whether the charities’ funders are using the charities to generate improper recommendations or referrals. In December 2017, the U.S. Department of Health and Human Services Office of Inspector General rescinded a...

Alleging Improper Use of Funds Legitimately Obtained from the Government Insufficient to State FCA Retaliation Claim

Ben Kappelman

The U.S. District Court for the Southern District of Texas has dismissed an FCA retaliation claim brought by a nurse who claimed to have blown the whistle on misuse of funds at a hospital that received significant federal revenue. In Endicott v. Oakbend Medical Center, the nurse alleged she was fired after she complained that several hospital executives were using hospital employee time to enrich...

Eighth Circuit Determines that Compliance with Reasonable Interpretation of Government Regulation Sufficient to Avoid FCA Liability (Absent a Government Warning to the Contrary)

Ben Kappelman

The Centers for Medicare and Medicaid Services (“CMS”) establishes requirements for how medical procedures must be performed for a medical provider to seek payment for those procedures.  Seeking payment without properly performing the procedure might expose the provider to alleged liability under the False Claims Act (“FCA”).  But what if the requirements for the procedure are ambiguous?  Will a provider’s reasonable interpretation of a requirement...

DOJ Intervenes In FCA Suit Against Subcontractor That Allegedly Failed to Comply With Specifications

Ben Kappelman

A recently unsealed False Claims Act case in Maine alleges a roof contractor knowingly failed to use materials that complied with the prime contracts for renovation of government buildings. According to the complaint filed by the United States in Emery v. Roof Systems of Maine Inc., 2:14-cv-00483-DBH (D. Me.), Roof Systems of Maine worked as a subcontractor at a National Guard installation at the former...

Fifth Circuit Concludes That FCA Claim Was Not Covered By Insurance Policy

Ben Kappelman

The U.S. Court of Appeals for the Fifth Circuit recently rejected a shipbuilder’s claim against its insurance company seeking defense and indemnification from a False Claims Act suit. See XL Spec. Ins. Co. v. Bollinger Shipyards, Inc., No. 14-31283, 2015 WL 5052504, 2015 U.S. App. LEXIS 15160 (5th Cir. Aug. 27, 2015). Over a decade ago, shipbuilder Bollinger Shipyards, Inc. retrofitted patrol boats under contract...