Mr. Kester and/or Mr. Isenberg have represented successful False Claims Act (“FCA”) whistleblowers, known as “relators,” in the following cases:
United States, et al., ex rel. Westmoreland v. Amgen Inc., et al.
Civil Action No. 06-10972-WGY (D. Mass.)
$762 Million Global Settlement (December 2012)
In this case, Kester & Isenberg’s client was a former employee who alleged that for years Amgen had engaged in various illegal kickback schemes that resulted in millions of dollars of unlawful billings to Medicare and Medicaid. For example, it was alleged that Amgen illegally induced physicians to prescribe Amgen’s anti-anemia drug Aranesp by encouraging physicians to bill the government for the “overfill” present in the drug vials. Such “overfill” is provided by the manufacturer to ensure that the proper dose can be administered – not for the purpose of providing additional free product for which a physician might bill and profit.
Filed in June 2006, this FCA case against Amgen lasted over 6 years, and it involved significant work, including over 100 depositions. Ultimately, in December 2012, Amgen paid $762 million to the federal government and various states to resolve the criminal charges and multiple FCA cases against the company, including the FCA claims asserted by Kester & Isenberg’s client.
United States, et al., ex rel., Clarke, et al. v. Aegerion Pharmaceuticals, Inc., et al.
Civil Action No. 13-cv-11785-IT (D. Mass.)
$28.8 Million Settlement (September 2017)
Three former employees asserted that Aegerion Pharmaceuticals had been unlawfully marketing its very expensive “orphan drug” Juxtapid to increase sales and profits. Specifically, it was alleged that Aegerion had been promoting the drug to physicians for uses that had not been approved by the FDA – known as “off label” marketing.
Filed in July 2013, this FCA case resulted in a complete vindication of the whistleblowers’ allegations. In September 2017, Aegerion agreed to pay $28.8 million to the federal government and various states to resolve the civil claims against the company. Aegerion also agreed to plead guilty to certain criminal charges and to pay an additional $7.2 million in connection with the company’s criminal plea.
United States ex rel. Lokosky v. Acclarent, Inc., Ethicon, Inc., and Johnson & Johnson
Civil Action No. 11-cv-11217-WGY (D. Mass.)
$18 Million Settlement (July 2016)
A former employee of the Johnson & Johnson subsidiary Acclarent alleged that Acclarent had engaged in unlawful “off label” marketing of various “spacers” that were used in connection with certain nasal surgeries. This resulted in millions of dollars of false claims being paid by Medicare.
Filed in July 2011, this FCA case settled 5 years later in July 2016 when Acclarent agreed to pay $18 million to the federal government to resolve the case.
United States ex rel. Bennett v. Abiomed, Inc.
Civil Action No. 13-cv-12277-IT (D. Mass.)
$3.1 Million Settlement (April 2018)
In this case, a former Abiomed employee alleged that the medical device company improperly had sought to induce physicians to use its heart pumps by, among other things, buying lavish meals for them at expensive restaurants. When the employee (a registered nurse) questioned the expenses to his superiors, the company allegedly retaliated and fired him.
Filed in September 2013, this FCA case settled recently in April 2018 when Abiomed agreed to pay $3.1 million to the federal government to resolve the FCA claims in the case. However, the employee’s retaliation claims against Abiomed were not settled; and those claims are currently being litigated.