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Jenner & Block secured a victory for client Medline Industries Inc. when the Seventh Circuit affirmed the dismissal of a whistleblower lawsuit against the durable medical equipment supplier as well as nursing home provider Tutera Group Inc. On January 5, 2016, the court held that the lawsuit’s kickback allegations were too similar to a prior False Claims Act (FCA) lawsuit that Medline had previously settled with the government.
The whistleblower, August Bogina III, alleged that a former member of Tutera’s ownership group told him that Medline paid Tutera kickbacks. He claimed that his lawsuit differed from the prior Medline lawsuit, United States ex rel. Mason v. Medline Industries Inc., in three significant ways. But the court said Mr. Bogina’s additional allegations did not materially add to the allegations in the Mason case, a necessary threshold to qualify as an “original source” of the allegations. Referencing the prior lawsuit against Medline, Judge Richard A. Posner said the FCA does not allow “bounty hunters” such as Mr. Bogina to pursue duplicative litigation to secure a government settlement. The previous case settled in March 2011; Mr. Bogina filed his lawsuit in August 2011. Bloomberg BNA (subscription required) reported on the dismissal.
Partner Monica Pinciak-Madden argued the recent case, and Ms. Pinciak-Madden and Partner Thalia L. Myrianthopoulos drafted the brief. The team representing Medline also included firm Chairman Anton R. Valukas and Partner Charles B. Sklarsky.