National Drug Wholesaler Settles Drug Adulteration False Claims Act Case

Contact: J. Marc Vezina (504) 813-6100 -
Date: October 1, 2018.

Vezina Law Group announced today a $625 million dollar civil settlement of a False Claims Act lawsuit between its client Omni Healthcare Inc., et al. (“Relator”); Defendant AmerisourceBergen Corporation and its subsidiaries (“Amerisource Bergen”); the United States of America, acting through the United States Attorney’s Office for the Eastern District of New York and on behalf of the Office of Inspector General (“HHS-OIG”) of the Department of Health and Human Services (“HHS”) (collectively, the “United States”); and the States of California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Maryland, The Commonwealth of Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, The Commonwealth of Virginia, and Wisconsin, acting through their respective Medicaid Fraud Control Units, among other parties to the action. In addition, AmerisourceBergen’s subsidiary has plead guilty to a criminal charge of distributing misbranded drugs and paid a $260 million-dollar criminal fine to the United States. The USDOJ Press Release on the Criminal Penalty is located here. AmerisourceBergen is one of the largest drug wholesalers in the country. Through its subsidiaries, Amerisource Bergen operated an unlawful Pre-Filled Syringe Program (the “Program”) that repackaged the following injectable drugs: Procrit®, Aloxi®, Kytril® and its generic form granisetron, Anzemet® and Neupogen® (the “Covered Drugs”). Through the Program, AmerisourceBergen caused numerous false claims to be submitted to the Federal and State healthcare programs, including Medicare, Medicaid, TRICARE, the Federal Employees Health Benefits Program, and the Veteran’s Affairs (1) for unapproved new drugs; (2) for drugs that were defective, contaminated or otherwise compromised drugs, whose quality and/or purity fell below that which they were purported or represented to possess; (3) by causing double billing for the same vial of drug product as a result of exploiting overfill; and (4) for Procrit® purchased as a result of kickbacks to physicians for Procrit® Pre-Filled Syringe purchases. A portion of the settlement funds will go to the States that were also the subject of the false claims. For example, the State of Michigan will receive $1,227,448.08 plus interest and the State of Louisiana will receive $267,749.02 plus interest.

Relator’s lawsuit was originally filed in 2012 in Manhattan in the United States District Court for the Eastern District of New York, captioned United States ex rel. Omni Healthcare Inc. v. AmerisourceBergen, et al., Civil Action No. CV-12- 1178 (E.D.N.Y), pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730(b) (“FCA”). The False Claims Act allows private persons with knowledge of fraud against a government program to file lawsuits on the 280 N. Old Woodward, Suite LL20, Birmingham, MI 48009 • 248-558-2700 • 248-232-1581 [fax] government’s behalf. If the case is successful, the private plaintiffs, known as “relators,” are entitled to a percentage of the government’s recovery. The False Claims Act provides for recovery of treble (triple) the single damages incurred by the government as a result of the fraud, as well as civil monetary penalties of between $5,500 and $11,000 or more per false claim submitted and statutory attorney fees. In this case, Relators will receive 16% of the recovery.

Relators were represented by J. Marc Vezina and Monica P. Navarro, partners at Vezina Law, PLC, a member of the Vezina Law Group with offices in Birmingham, Michigan and New Orleans, Louisiana. The United States was represented by Assistant U.S. Attorneys Deborah Zwany and Matt Silverman of the Eastern District of New York and Sanjay Bhambhani of the Commercial Litigation Branch of the U.S. Department of Justice and the States were represented by the various State Medicaid Fraud Control Units.