Roger Lewis was recently cited in separate Law360 articles regarding the Seventh Circuit’s recent False Claims Act ruling regarding 'objectively reasonable' interpretations and the Supreme Court's consideration of the Department of Justice’s dismissal power in FCA cases.
In “Top Gov't Contract Cases In 2022: Midyear Report,” Roger discussed the Seventh Circuit’s recent ruling that Safeway Inc.’s drug-pricing practices did not give rise to FCA liability even though they deprived the government of discounts offered to other customers. The court ruled that Safeway's interpretation of the governing regulations for drug pricing was “objectively reasonable,” and thus not actionable under the FCA.
Roger commented on how the Seventh Circuit’s ruling could allow corporate defendants to escape liability simply by coming up with after-the-fact interpretations, even incorrect interpretations, that they did not actually hold at the time of their conduct. He noted that the Safeway ruling, if it stands, could mean that a defendant's actual intent to defraud the government is irrelevant in certain FCA cases.
In another article headlined, “Top Gov’t Contracting Cases To Watch in 2nd Half of 2022,” Roger provided insights on the U.S. Supreme Court's upcoming review of a case where the DOJ moved to dismiss an FCA case without intervening or explanation.
Roger specifically stated that the Polansky case serves as an opportunity for the Supreme Court to put an end to a troubling trend in some lower courts allowing the government to dismiss a relator's FCA case without intervening or providing any reason for dismissal. Roger elaborated that forcing the government to seek intervention and to provide a rationale for dismissal is “not an intrusion into the government's control of the case."