David Pivnick
speaker
231 appearances
7 recordings
1 series
first heard Feb 2025
last heard Jun 2025
David Pivnick’s voice in public audio — every appearance, attributed to the second.
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And I expect fully that the issue will make its way to the Supreme Court and likely get taken up by the Supreme Court. And that would have a massive impact on False Blames Act litigation generally and specifically on whistleblower litigation. So that's something that the briefing was completed in the first five months, first four months really of this year.
And it's certainly something I've been focused on and looking into it and will have a big impact on work that I'm participating in and representing clients in going forward. And then I always monitor what DOJ is focused on and where some of the key litigation efforts are going as well.
I think there is. I think that the general concept here is under the Constitution, based on the Appointments Clause and Care Clause, There are certain authorities that are limited to the executive and where people have to be appointed to represent the government appropriately.
In this instance, the key to supervision sort of circumvent that and had whistleblowers with no basis or standing other than self-election, self-determining that they're going to file a lawsuit, coming in and taking over that. And while the government has the ability to investigate and intervene,
in cases where it declines to do so, and the DOJ is not running the case, you're left with private litigants making their own decisions. And so I think there's already, to my mind, as you pointed out, the False Claims Act is initially a Civil War enacted statute. To my mind, it is not intended to cover or was not intended to cover the wide array of purported wrongs that it currently covers.
I think it's already been taken beyond its intended utility. And particularly in the healthcare context, I think the False Claims Act is an inappropriate and overly blunt object for hammering out, in many instances, what is hyper-technical violations rather than sort of black and white fraud.
It was more intended to do things like billing for services not rendered or intentional upcoding, billing for treating dead people versus you know, any allegation of regulatory non-compliance can lead to potential liability under the False Claims Act with this heavy statutory penalty scheme, so long as the non-compliance is purportedly material.
So there's a lot of ability for folks to pursue non-fraudulent, at least, you know, as you or I or our listeners would contemplate fraud, conduct that doesn't really fit in that rubric, but can fit under the act. And in healthcare,
you know, where the statutory penalties right now are, you know, into the five digits per claim, you know, you could be looking at a situation where you build improperly for an E&M code If you got paid $150, give or take, for the evaluation management service, but your liability, if you fraudulently build that code, could be $25,000, it's somewhat outsized and nonsensical, frankly, in proportion.
I think there's already some practical and policy issues with the statute, which is not can't amount to me saying fraud is fine, don't worry about it. It's more saying there are appropriate ways to monitor it. And there's a big difference between fraud and regulatory noncompliance getting lumped in with fraud.
And so taking that framework and then applying the fact that, you know, with some limited exceptions, anyone can bring these claims on behalf of the government. I do think the constitutionality concerns are well taken.
I think if it was fair to be non-constitutional, the way it would practically work would be whistleblowers wouldn't be able to prosecute the claims. So it might not prevent whistleblowers from asserting claims, but it would certainly leave claims where the government declined to intervene and take over the prosecution in a situation where those claims would become
unconstitutional and therefore barred and subject to judgment or dismissal.
Yeah, so you're right on with the numbers. In any given year, it's in that 20% to 25% ballpark that the government intervenes. Now, it isn't necessarily the case that that the remainder would all go out if it was fair and unconstitutional, because part of what might happen is, you know, it's possible DOJ would intervene more frequently. There might be other steps that were taken to protect cases.
I do think there's a significant number of cases, some of which, you know, unfortunately for my clients, like I've had multiple cases where I've represented clients who really didn't do anything wrong, full stop, period. There was no
merit to it, but they are in a position where it is incredibly expensive to defend these cases and incredibly risky in case you have a judgment against because of that penalty scheme. There is a lot of cases I think annually that end up getting settled for relatively low amounts because people are ultimately concerned about the outside liability. I think a lot of those cases
would fall away, and I think, frankly, very much appropriately so. I think the bigger cases, both in terms of dollars and targets and the risk, and particularly where the conduct is egregious, the DOJ would be picking up anyway. And so those would not be falling away. And again, I don't view it as one where someone could get away
With wrongdoing, I view it more as avoiding improperly incentivizing people to bring claims knowing that there might not be anything there, but they're likely to be able to shake out a decent settlement if they can survive a motion to dismiss.
Yeah, absolutely. And I mean, the numbers fluctuate year to year over the last five to 10 years, the number in total government fraud recoveries, it is typically in the $3 to $5 billion range. There's some exceptions slightly higher than the $5 billion mark, some exceptions that are in the $2 to $3 billion range, but that $3 to $5 billion
range has been where the recoveries have been for most of the last several years, probably dating back at this point, the better part of a decade. Most years, as you alluded to, the overwhelming majority of those dollars are in cases where the government intervenes. So again, the government's intervening one in four, one in five
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