On April 28, Neil V. Getnick, managing partner of Getnick & Getnick LLP and chairman of Taxpayers Against Fraud, testified at a hearing before the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice regarding “Oversight of the False Claims Act.” In addition to Getnick’s prepared remarks (read our summary here), Getnick responded to concerns expressed by Subcommittee Chairman Trent Franks and some of the other individuals testifying about the potential for abuse in the False Claims Act.
Getnick told the Subcommittee members that “the False Claims Act is replete with protective mechanisms”–including legal hurdles for actions, DOJ’s power to dismiss an action, and sanctions imposed against those filing frivolous cases– and “this multifaceted regime is a tremendous boar against abuse.” Getnick also told the Subcommittee that:
What concerns me is hearing that there are only a “handful” of examples of declined cases that go onto be successful. And while I’m concerned about what I’ve heard from Mr. [Dennis] Burke [President & CEO, Good Shepherd Health Care System], I also recognize that that’s a case that took place ten years ago and so if we need to reach back ten years to find that type of situation, that should tell us that this is not a matter of great frequency. On the other hand, we only have to reach back to yesterday to see how declined cases play a very specific and important role. One of the cases you pointed out in your opening remarks was the Wyeth/Pfizer Protonix case. That case settled yesterday for $750 million after an initial Department of Justice declination and fourteen years of work. It’s very important to realize that the Department of Justice at some point declined, but because this action-forcing mechanism took place, the relator and relator’s counsel were able to continue investigating the case, continue to advance the case, and prove it up. Then the Department of Justice said, “Wait a moment, this is a case we have to become involved in.” And, then, we see that yesterday that Wyeth/Pfizer is going to pay $413 million to the United States, the participating states, $371 million dollars. And those companies are not denying the government’s allegations of alleged illegal bundling and pricing violations. So, that case was successfully defended on a motion to dismiss and zero dollars would have come out without the whistleblowers and their lawyers pursuing that case after DOJ declined.