Jim VanderLinden featured on Minnesota Public Radio
St. Louis Park attorney James Vander Linden represents whistleblowers, company insiders filing claims for money recovered from employers suspected of stealing funds. He has spent years trying to recover Medicaid and Medicare dollars, and he doesn’t think the government has enough muscle to go after the big time health care fraud perpetrators.
“The real problem,” he says, “is corporate America.”
Neil P. Thompson, Robert P. Christensen, Brian Wojtalewicz and James G. VanderLinden recently settled a qui tam case against the pharmacy chain CVS for $17.5 million. The whistleblower/relator, pharmacist Stephani LeFlore of Minnesota, alleged that CVS designed a billing software program that consistently overcharged Medicaid for prescription drugs.
LeFlore and her attorneys will receive $2,595,460 under the state and federal False Claims Acts, and are also entitled to receive attorney fees from CVS. The reward is 16 percent of the settlement, a little bit more than the national average of 15.6 percent. The amount of the attorney fee is still under negotiation.
The four lawyers also sued Walgreens in 2005 for using a billing system that cheated Medicaid. That case settled in 2008 for $9.9 million with the whistleblowers – Thompson, who is a pharmacist as well as a lawyer, and another man – receiving $1.44 million plus fees.
In the CVS case, the fraud arose in connection with customers who were on Medicaid and also had private health insurance coverage. In the 10 states involved in the lawsuit – California, Massachusetts, Michigan, Minnesota, Florida, Indiana, Alabama, Nevada, New Hampshire and Rhode Island – CVS was supposed to charge the insurance companies a certain amount for prescriptions, with a limited co-pay charged to the customers. This limited co-pay was assigned to Medicaid.
But LeFlore, who is a pharmacist at CVS, alleged that CVS consistently overcharged Medicaid for the co-pays. She claimed that overcharges occurred on hundreds of thousands of prescription sales for over five years. To support her claims, she first gathered data from CVS’s computers, Christensen said.
LeFlore was told by her attorneys to look to see how much CVS had billed Medicaid, and then contact the state and the insurance companies to see how much CVS was entitled to.
Because the same attorneys had handled the Walgreens case, it was easier to know what to look for, Thompson said.
“She … had a tip as to what to look for, because of the previous cases,” he noted.
Once LeFlore had collected the information, she and her attorneys could run the numbers and see a pattern, Wojtalewicz said.
Before filing their case, LeFlore’s attorneys wanted to make sure they were bringing good information to the table.
“We wanted to have some of the juice before we got to the government to build up our credibility, to prove our case,” Christensen said. “Not only do we have to sell it to ourselves, we have to sell it to the government lawyers and then it has to get sold to the defendant.”
Typically, a relator files a complaint under seal. This allows the government, if it decides to intervene, to investigate though its own channels before informing the object of the investigation. If the investigation reveals a basis for going forward, a judge partially lifts the seal and advises the defendant of the case. Then the parties may negotiate a settlement, keeping in mind that the law allows for treble damages and a penalty of $5,500 to $11,000 for each claim falsely filed, VanderLinden said.
As the case develops, the relator’s attorneys may find themselves in conflict with the government over their share.
“We often end up negotiating with the government,” Wojtalewicz said.
He said that many private lawyers who work with qui tam cases become frustrated because the federal attorneys are “smothered” in False Claim Act matters. “We think they cherry-pick. They take the biggest and most easily proven, and you can’t blame them.”
In this case, the government almost backed away because they didn’t think there were enough damages to make it worth pursing. But LeFlore’s lawyers persisted and the government eventually came around.
Qui tam cases are frustrating for the relator, noted Thompson, because he or she is generally still employed by the defendant.
“One of the important take-aways for lawyers … is to emphasize that the whistleblower should get advice early before he or she reports inside the company,” Wojtalewicz said. Otherwise, “you’re painting a big target on your back.”
Venue is an important issue in qui tam cases. In the LeFlore case, one of the first strategic decisions the team made was to sue in federal court in Wisconsin, which is in the Seventh Circuit. “Eighth Circuit opinions on false claims really are oriented to the corporations, not the whistleblower,” Wojtalewicz explained.