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Aaron Silberman Quoted in Bloomberg Law Article on Planned Parenthood False Claims Act Appeal

by Aaron P. Silberman

Rogers Joseph O’Donnell shareholder Aaron Silberman was quoted in a Bloomberg Law article on Planned Parenthood’s recent argument that it should be shielded from a whistleblower’s Medicaid fraud suit under the federal civil False Claims Act (FCA). Titled “Planned Parenthood’s Immunity Appeal Risks ‘Real World Problems,’” the article breaks down why the appeal could have major implications for how attorneys represent organizations and corporations and how this could impact their clients’ potential FCA liability. 

In the appeal, the Fifth Circuit must evaluate whether attorney immunity precludes whistleblower Alex Doe’s FCA lawsuit. After Planned Parenthood was banned from Medicaid by Louisiana and Texas, Doe alleges Planned Parenthood’s in-house litigation and law department developed a litigation strategy that saw it continue to bill federal Medicaid while courts determined whether it could do so. Doe argues that this constitutes a violation of the FCA. Doe also argues that granting Planned Parenthood immunity would allow companies to avoid accountability simply by involving in-house lawyers in any potential wrongdoing. 

Silberman noted for Bloomberg Law that Doe’s brief does raise an argument “which, if factually supported, should defeat the attorney immunity defense in many cases” when applied to in-house counsel. In situations in which “the lawyer serves a dual legal/business role, and, if the latter had anything to do with the alleged false claims violations, I’d think the immunity defense would fail.”

At the same time, Silberman also told Bloomberg Law that he agreed with Planned Parenthood’s assertion that an attorney can’t be liable for causing the submission of a false claim where the only allegedly improper conduct was providing legal advice. “Allowing FCA liability in that situation would unduly expand the plain meaning of the FCA liability provisions,” Silberman said.

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