• United States ex rel. Lobel v. Express Scripts Inc. No. 05-cv-02707 (E.D. Pa. Dec. 1, 2008)
  • December 13, 2009 | Authors: Arthur N. Lerner; Bruce O. Tavel
  • Law Firm: Crowell & Moring LLP - Washington Office
  • The United States District Court for the Eastern District of Pennsylvania dismissed a qui tam complaint brought under a certification theory, finding the complaint failed to state a cause of action under the False Claims Act.

    Lobel filed a qui tam complaint against his former employer, Express Scripts, Inc., asserting violations of various provisions of the False Claims Act. In support, Lobel alleged that Express Scripts falsely certified compliance with a contract term, statute, or regulation as a condition to government payment when payment is conditioned on compliance with that requirement. In particular, the complaint alleged that Express Scripts failed to properly verify the Drug Enforcement Agency number assigned to the prescribing physician and then placed that number on the prescription. The government chose not to intervene, but requested that any dismissal should be without prejudice to the government’s ability to take action in the future.

    The District Court dismissed the complaint, finding that an alleged failure to comply with a general certification, rather than a particular statute or regulation, fell short of alleging violations under the False Claims Act. The Court further noted that the complaint did not allege that any of the prescriptions were fraudulent, or that the government was billed for any prescriptions that were not in fact filled. Accordingly, the District Court dismissed the complaint, and declined to rule on the government’s request to dismiss without prejudice because the United States was not a direct party to the action.