John Kelly Comments for Law360 on Gilead Case’s Impact on FCA Litigation

January 3, 2019

Bass, Berry & Sims  attorney John Kelly provided insight for Law360 on the Department of Justice’s surprising move to publicly state to the U.S. Supreme Court that it would terminate a False Claims Act (FCA) suit against Gilead Sciences Inc. if the case went back to the Ninth Circuit and its potential impact on future FCA litigation. This unusual move appears to be tied to the Department’s issuance in 2018 of the Granston Memo, in which the government indicated a greater desire to end FCA cases in certain scenarios, and it leaves many wondering whether the government is likely to continue to terminate cases in which they have already decided not to intervene.

John noted that this type of filed claim by the government has never been at such a high level and so public. He expects pushback in the coming months from the relators bar, which will likely challenge the scope of the government’s authority to dismiss FCA cases and in what situations.

“It does send a message to relators that extensive discovery on regulatory issues might be a hurdle for them that they have to overcome,” John explained. “That’s a positive thing for the defense bar.”

The full article, “Life Sciences Cases to Watch in 2019,” was published by Law360 on January 1, 2019, and is available online.