Law360
The Ninth Circuit revied a whistleblower lawsuit accusing Express Scripts Inc. of defrauding the Department of Defense of billions of dollars in unnecessary mediations for military personnel. The whistleblower, 3729 LLC, is represented by David Chizewer and Roger Lewis of Goldberg Kohn and Ross Hyslop of Pestotnick LLP.
3729 LLC, formed by a former Express Scripts pharmacist and three senior tech executives, alleged that Express Scripts carried out its scheme by enrolling as many Tricare beneficiaries in automatic delivery as possible, and calibrating its pharmacy dispensing software to that a full 90-day supply of medication was dispense every 60 days. Express Scripts moved to dismiss the lawsuit in December 2022 under the False Claims Act's public disclosure bar, noting that the allegations were publically disclosed in an Army Times article. The motion was granted and instead of amending their compliant, 3729 LLC sought to appeal the decision to the Ninth Circuit.
In reversing the lower court's decision, the Ninth Circuit panel said that the content of the article was "not substantially similar" to the fraud that 3729 LLC alleged in its suit.
Roger Lewis of Goldberg Kohn said,
We are pleased with the court's ruling and, more importantly, with the opportunity to hold the company accountable for its mistreatment of our military's healthcare system
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