In a decision issued on June 17, the United States Court of Appeals for the First Circuit affirmed the dismissal of a qui tam lawsuit brought in the United States District Court for the District of Massachusetts against Novartis Pharmaceuticals Corporation and Novartis Corporation. The suit, which was filed by multiple relators under the False Claims Act, alleged off label and kickback claims in connection with the asthma drug, Xolair®.
The First Circuit agreed with the district court’s finding that relators had failed to plead their allegations with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure. The First Circuit also found, as Kaye Scholer had argued, that one of the complaints at issue failed for another, independent reason—the False Claims Act’s First-to-File bar, which compels dismissal of a later-filed qui tam complaint alleging the same scheme as an earlier-filed qui tam complaint while the latter is pending.
The Kaye Scholer team representing Novartis Pharmaceuticals Corporation and Novartis Corporation included partners Michael Rogoff (who argued the appeal before the First Circuit on behalf of Novartis) and Manvin Mayell, counsel Debra Schreck and associates Ari Fontecchio and Will Madden.
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