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`Karen P. Hewitt (State Bar No. 145309)
`kphewitt@jonesday.com
`Kelly V. O’Donnell (State Bar No. 257266)
`kodonnell@jonesday.com
`JONES DAY
`4655 Executive Drive, Suite 1500
`San Diego, CA 92121-3134
`Telephone: 858.314.1200
`
`Rajeev Muttreja (admitted pro hac vice)
`rmuttreja@jonesday.com
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: 212.326.3939
`Eric Tung (State Bar No. 275063)
`etung@jonesday.com
`JONES DAY
`555 South Flower Street, 50th Floor
`Los Angeles, CA 90071
`Telephone: 213.489.3939
`
`Attorneys for Defendants Abbott Laboratories,
`Inc., Abbott Cardiovascular Systems Inc., and
`Abbott Vascular Inc.
`
`Plaintiffs and Relator,
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`UNITED STATES OF AMERICA, et
`Case No. 3:20-cv-0286-W-AGS
`al.; ex rel. EVEREST PRINCIPALS,
`
`LLC,
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANTS’ MOTION TO
`DISMISS SECOND AMENDED
`COMPLAINT
`
`Date: November 14, 2022
`Ctrm: 3C – Hon. Thomas J. Whelan
`
`
`
`v.
`ABBOTT LABORATORIES, INC.
`a/k/a ABBOTT LABORATORIES,
`ABBOTT CARDIOVASCULAR
`SYSTEMS INC., and ABBOTT
`VASCULAR INC.
`Defendants.
`
`
`20cv0286
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS SAC
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ..................................................................................................... 1
`BACKGROUND ....................................................................................................... 4
`I.
`Abbott Develops a Groundbreaking Medical Device. .................................... 4
`II.
`Relator’s Lawsuit and the Court’s Dismissal Order. ...................................... 5
`ARGUMENT ............................................................................................................. 7
`I.
`Relator Must Plausibly Plead the State FCA Claims with Particularity. ........ 7
`II.
`Relator’s State FCA Allegations Fail Under Rule 9(b). ................................. 8
`A.
`Conclusory allegations of a “nationwide” scheme cannot support
`Relator’s state-law claims. .................................................................... 8
`Relator’s allegations of a nationwide marketing strategy fail to
`support the State FCA claims with particularity. ................................ 10
`Relator’s new allegations of supposed practice-building events
`likewise fail to support the State FCA claims. .................................... 13
`III. Relator’s State FCA Claims Should Be Dismissed with Prejudice. ............. 16
`CONCLUSION ........................................................................................................ 17
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`B.
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`C.
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ............................................................................................. 8
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ..................................................................................... 11, 16
`Ebeid ex rel. U.S. v. Lungwitz,
`616 F.3d 993 (9th Cir. 2010) ................................................................................ 8
`Foglia v. Renal Ventures Mgmt.,
`830 F. Supp. 2d 8 (D.N.J. 2011) ............................................................... 3, 12, 15
`Hart v. Publicis Touchpoint Sols., Inc.,
`821 F. App’x 557 (6th Cir. 2020) ......................................................................... 2
`Health Choice All., LLC, ex rel. U.S. v. Eli Lilly & Co., Inc.,
`No. 17-CV-123, 2018 WL 4026986 (E.D. Tex. July 25, 2018) ........................... 7
`Health Choice Group, LLC v. Bayer Corp.,
`No. 17-cv-126, 2018 WL 3637381 (E.D. Tex. June 29, 2018) ...................... 3, 15
`Hericks v. Lincare Inc.,
`No. 07-387, 2014 WL 1225660 (E.D. Pa. Mar. 25, 2014) ................................... 9
`Metroflex Oceanside LLC v. Newsom,
`532 F. Supp. 3d 976 (S.D. Cal. 2021) ................................................................ 16
`U.S. ex rel. Acad. Health Ctr., Inc. v. Hyperion Found., Inc.,
`No. 10-cv-552, 2014 WL 3385189 (S.D. Miss. July 9, 2014) ............................. 9
`U.S. ex rel. Buth v. Walmart, Inc.,
`No. 18-cv-840, 2019 WL 3802651 (E.D. Wis. Aug. 13, 2019) ........................... 8
`U.S. ex rel. Chin v. CVS Pharmacy, Inc.,
`No. 09-cv-1293, 2017 WL 4174416 (C.D. Cal. Aug. 15, 2017) .......................... 8
`U.S. ex rel. Devlin v. State of California,
`84 F.3d 358 (9th Cir. 1996) .................................................................................. 3
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
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`U.S. ex rel. Gough v. Eastwestproto, Inc.,
`No. CV 14-465, 2018 WL 6929332 (C.D. Cal. Oct. 24, 2018) ......................... 15
`U.S. ex rel. Harris v. Alan Ritchey, Inc.,
`No. C00-2191Z, 2006 WL 3761339 (W.D. Wash. Dec. 20, 2006) ................... 10
`U.S. ex rel. Judd v. Quest Diagnostics, Inc.,
`No. 10-cv-4914, 2014 WL 2435659 (D.N.J. May 30, 2014) ............................. 16
`U.S. ex rel. Kroening v. Forest Pharms., Inc.,
`155 F. Supp. 3d 882 (E.D. Wis. 2016) ............................................................... 12
`U.S. ex rel. Nowak v. Medtronic, Inc.,
`806 F. Supp. 2d 310 (D. Mass. 2011) ......................................................... 7, 9, 12
`U.S. ex rel. Reilly v. Adventist Health,
`No. 17-CV-00613, 2020 WL 2522114 (E.D. Cal. May 18, 2020)......... 11, 12, 15
`U.S. ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc.,
`906 F. Supp. 2d 1264 (N.D. Ga. 2012) ...................................................... 7, 9, 13
`U.S. ex rel. Solis v. Millennium Pharm., Inc.,
`445 F. Supp. 3d 786 (E.D. Cal. 2020) ................................................................ 16
`U.S. ex rel. Wall v. Vista Hospice Care, Inc.,
`778 F. Supp. 2d 709 (N.D. Tex. 2011) ............................................... 7, 10, 12, 13
`United States v. Ctr. for Diagnostic Imaging, Inc.,
`787 F. Supp. 2d 1213 (W.D. Wash. 2011) ......................................................... 15
`United States v. Medtronic, Inc.,
`No. 15-6265, 2017 WL 2653568 (E.D. Pa. June 19, 2017) ............................. 1, 9
`United States v. North Am. Health Care, Inc.,
`No. 14-cv-2401, 2015 WL 6871781 (N.D. Cal. Nov. 5, 2015) ........................... 8
`United States v. Novartis Pharmaceutical Corp.,
`No. 13-cv-3700, 2022 WL 4217749 (S.D.N.Y. Sept. 13, 2022) .............. 2, 15, 16
`Vess v. Ciba-Geigy Corp. USA,
`317 F.3d 1097 (9th Cir. 2003) ........................................................................ 8, 16
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
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`STATUTES
`42 U.S.C. § 1320a-7b(b)(2)(B) .................................................................................. 7
`OTHER AUTHORITIES
`Fed. R. Civ. P. 9(b) ........................................................................................... passim
`Gina Kolata, Tiny Device Is a “Huge Advance” for Treatment of
`Severe Heart Failure, N.Y. Times (Sept. 23, 2018) ............................................ 4
`Structural Heart Solutions, MitraClip TMVr: The Leader in
`Transcatheter Mitral Valve Repair Technology ................................................... 4
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`INTRODUCTION
`The Second Amended Complaint (“SAC”) is Relator’s third attempt to assert
`claims under more than two dozen States’ False Claims Act (“FCA”) laws (the
`“State FCA Claims”). When the Court recently dismissed these claims, it explicitly
`instructed that Relator needed to plead “with particularity how any false claims
`were submitted to each state.” Dkt. No. 56 (emphases added). Relator has utterly
`failed to do this, and the Court should dismiss the State FCA claims again—this
`time with prejudice.
`The SAC actually drops two States entirely, and does not even try to add
`particularized facts for 22 of the 26 remaining States. Instead, Relator just inserted
`the labels “nationwide,” “national,” and “in all states” a few more times, made
`some new general allegations about Abbott’s marketing and training, and added
`eight isolated allegations about what appear to be eight different doctors in four
`different States (California, Florida, Georgia, and New York). None of this comes
`close to satisfying Relator’s pleading burden, despite the Court’s roadmap of the
`types of details Relator must allege to support its State FCA claims. Relator’s
`failure to provide particularized facts for conduct and claims in more than two
`dozen States across the country is not a surprise, though—as the individual behind
`the shell company named as Relator worked at Abbott for a mere 21 months in a
`very limited geographical area.
`First, simply calling a purported scheme “nationwide” does not suffice to
`allege state-by-state liability. If simply inserting those words were enough, the
`Court would not have dismissed these claims to begin with. The Court held that
`Relator must do more—because, as other courts have recognized as well, “blanket
`allegations of a nationwide scheme do not meet the particularity requirement of
`Rule 9(b) and cannot support claims under other states’ statutes.” United States v.
`Medtronic, Inc., No. 15-6265, 2017 WL 2653568, at *5 (E.D. Pa. June 19, 2017).
`Second, the new allegations about general marketing strategy and internal
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`training sessions also do not move the needle. These allegations do not even
`suggest wrongdoing. Providing snippets of a public earnings call and a general
`description of routine training sessions, the allegations describe neither purported
`kickbacks nor any claims for reimbursement linked to such conduct. Nor do these
`allegations describe any activity in any particular State.
`Finally, Relator’s meager attempt to allege wrongdoing through eight
`isolated examples involving eight different doctors in the four States named above
`ignores the critical distinction between lawful education and nefarious conduct, and
`underscores that Relator has absolutely no knowledge regarding the other States.
`As this Court’s prior order recognized, it is hardly improper to host events for
`“educational” purposes or as “token[s] of goodwill.” Order at 12, 14-15; see United
`States v. Novartis Pharmaceutical Corp., No. 13-cv-3700, 2022 WL 4217749, at
`*4, 9 (S.D.N.Y. Sept. 13, 2022); Hart v. Publicis Touchpoint Sols., Inc., 821 F.
`App’x 557, 562-63 (6th Cir. 2020). Education is particularly critical in this case.
`Although today MitraClip has saved and improved the lives of more than 100,000
`people globally and is supported by almost two decades of clinical data, when first
`approved it was an entirely new device, inserted into a patient’s beating heart
`through a novel catheter-based procedure. As with any groundbreaking device,
`doctors needed education about MitraClip so that they could understand when and
`how to use the device and the therapy.
`Given the lawful—indeed, essential—nature of Abbott’s educational efforts,
`the Court in its prior decision on Relator’s federal FCA claim focused on a handful
`of very specific, detailed factual allegations that the Court concluded, when taken
`as true, could suggest that certain events were not educational but instead may have
`been “free advertising and marketing assistance.” Order at 12, 14-15. The Court
`ruled that such detail was entirely absent for Relator’s State FCA claims. The
`Court’s analysis thus provided detailed guidance for Relator to cure the State FCA
`claims’ deficiencies, to the extent it could do so. But for the four States for which
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`the SAC even attempts to offer the appearance of specificity (and certainly for all
`other States), Relator ignores the Court’s roadmap. Under Relator’s view, simply
`alleging that Abbott hosted a reception at a hospital or invited a doctor to speak at a
`meeting would suffice to allege a kickback. That is not the law, as this Court’s
`prior order recognized.
`In addition to failing to allege facts plausibly alleging any kickbacks in any
`of the States, Relator does not even try to link these new allegations about the eight
`routine events to any particular MitraClip procedures for which the eight different
`doctors in question received state reimbursement. Instead, Relator merely adds
`aggregate State Medicaid payment information that is publicly available. See SAC
`¶ 183 & Ex. B. But “[a]n allegation that Defendant provides services to patients
`who receive state funds” is “not the same as an allegation that Defendant sought
`payment of state funds through false or fraudulent means.” Foglia v. Renal
`Ventures Mgmt., 830 F. Supp. 2d 8, 23 (D.N.J. 2011). Relator’s attempt to suggest
`otherwise through public payment data makes a mockery of false claims acts, which
`“aim[] at ferreting out fraud by encouraging persons with firsthand knowledge of
`alleged wrongdoing to come forward.” U.S. ex rel. Devlin v. State of California, 84
`F.3d 358, 362 (9th Cir. 1996) (emphasis added). As courts have thus routinely
`held, “charts of publicly available information” that “show collective [Medicaid]
`reimbursement figures without any indication those statewide payments had
`anything to do with any alleged kickback” do not suffice to plead State FCA
`claims. Health Choice Group, LLC v. Bayer Corp., No. 17-cv-126, 2018 WL
`3637381, at *30, *49-50 (E.D. Tex. June 29, 2018), report and recommendation
`adopted, 2018 WL 3630042 (E.D. Tex. July 31, 2018).
`At bottom, Relator has tried three times to allege a fraud that implicates the
`State FCAs, and Relator has failed all three times—including even after the Court
`described exactly what would suffice. The Court should hold that Relator cannot
`satisfy Rule 9(b) for the State FCA claims and dismiss those claims with prejudice.
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`I.
`
`BACKGROUND
`Abbott Develops a Groundbreaking Medical Device.
`When it was first approved by the FDA in 2013, Abbott’s revolutionary
`MitraClip device pioneered an entirely new treatment for patients suffering from
`mitral regurgitation—a debilitating, progressive, and potentially fatal condition
`where the heart’s mitral valve “fails to close tightly and thereby disrupts blood flow
`through the heart.” Dkt. No. 57, ¶ 139. Nothing like MitraClip, or the minimally
`invasive catheter-based procedure (the “TMVr” procedure) by which it is implanted
`in a beating heart, had ever been seen. A front-page New York Times article called
`MitraClip a “huge advance” that “sharply reduced deaths among patients with a
`grim prognosis.”1 Today, MitraClip has helped more than 100,000 patients
`worldwide, many of whom had no good alternative due to the risks of surgery.2
`Due to MitraClip’s novelty, few cardiologists and other healthcare providers
`even knew about MitraClip and its benefits as a new treatment option. While
`education about any new medical device is often needed to ensure safe, effective,
`and appropriate use, that need was heightened here due to MitraClip’s unique
`features. MitraClip is a complex, technical device, and doctors needed to learn how
`to identify appropriate candidates for the TMVr procedure, how to do
`echocardiograph imaging to prepare for and perform the procedure, and how to
`implant the device to get good results. See SAC ¶ 143 (describing procedure).
`Given these features, doctors thus needed to understand the device’s uses, benefits,
`and risks. As the pioneer of the device with expertise in how it worked and how to
`use it to benefit patients, Abbott offered that education by providing clinical and
`
`
`1 Gina Kolata, Tiny Device Is a “Huge Advance” for Treatment of Severe
`Heart Failure, N.Y. Times (Sept. 23, 2018), https://www.nytimes.com/2018/
`09/23/health/heart-failure-valve-repair-microclip.html (last visited Oct. 6, 2022).
`2 Structural Heart Solutions, MitraClip TMVr: The Leader in Transcatheter
`Mitral Valve Repair Technology, https://www.structuralheartsolutions.com/us/
`structural-heart-products-solutions/mitral-valve-mitraclip/overview/#isi (last visited
`Oct. 6, 2022).
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`safety information; information about patient screening, the burden on patients of
`mitral regurgitation, and the risk and benefits of MitraClip; and other resources.
`Relator has never disputed that—as the Court itself held—Abbott may
`educate doctors about the revolutionary device and procedure it pioneered.
`Moreover, education for all the parties involved in evaluating whether to use
`MitraClip is critical. To this day, the use of MitraClip in any particular patient
`occurs only with the approval of multiple independent decision makers involved in
`the patient’s care. See SAC ¶ 147. The patient must be an appropriate candidate
`for the TMVr procedure, a cardiac surgeon and a cardiologist must choose to refer
`the patient for the procedure, the hospital where the procedure will occur must
`approve of the device’s use, and the physician performing the procedure must
`decide to use the device and have the requisite expertise to do so.
`II. Relator’s Lawsuit and the Court’s Dismissal Order.
`Relator is a Delaware LLC whose sole member was an Abbott employee
`from August 2015 to April 2017. See Dkt. No. 57, ¶ 5. Relator’s initial complaint
`asserted violations of the federal FCA and the state-law analogs of 28 States
`(including the District of Columbia), premised on the allegation that Abbott
`violated the federal Anti-Kickback Statute (“AKS”) by hosting events for doctors
`that supposedly amounted to illegal remuneration by inducing government-paid
`MitraClip procedures. When Abbott moved to dismiss, see Dkts. Nos. 1, 30,
`Relator declined to oppose the motion and instead filed a First Amended Complaint
`(“FAC”)—which Abbott again moved to dismiss. See Dkts. Nos. 31, 45.
`On August 18, 2022, the Court granted Abbott’s motion in part and denied it
`in part. See Dkt. No. 56 (“Order”). The Court recognized that it is not unlawful to
`host “educational events” about the benefits and risks of MitraClip or to provide
`meals for doctors as a “token of goodwill.” See Order at 12. The Court thus held
`that Relator’s claim must contain sufficient factual detail to create “a plausible
`inference that these events were not simply ‘routine educational activities’” or
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`gestures of “goodwill,” but rather improper remuneration to induce false claims—
`for example, “free advertising and marketing assistance” to “help a doctor grow
`his/her patient practice” in exchange for using Abbott’s device. Id. at 12, 14-15.
`Applying that standard, the Court held that Relator had adequately alleged a
`federal FCA claim based on the particularized pleading of certain discrete events
`that were allegedly “repeated” and hosted for (and directed by) specific doctors.
`Order at 10-12, 14-15. The Court also highlighted how Relator alleged specific
`MitraClip procedures around the time of these events that were performed by these
`particular doctors and reimbursed by the federal government. See id.
`But the Court observed that no similar details supported the State FCA
`claims. Indeed, Relator’s specific allegations all concerned events occurring only
`in southern California and southwest Arizona—and, moreover, there were no
`specific allegations of payments made by State healthcare programs. The Court
`therefore dismissed all of the State FCA claims, holding that “Relator has not
`alleged with particularity how any false claims were submitted to each state
`identified in the FAC.” Order at 16. The Court gave Relator leave to amend. Id. at
`17.
`
`On September 22, 2022, Relator filed the SAC. Dkt. No. 57. This latest
`complaint drops two States entirely (Massachusetts and Maryland) and does not
`specifically address 22 of the 26 remaining States. For the other four States
`(California, Florida, Georgia, and New York), the SAC alleges eight isolated events
`involving eight different doctors who, as per public aggregate data, were paid by
`State healthcare programs for performing MitraClip procedures at some unspecified
`time(s) over a seven- or eight-year period. See SAC ¶ 163. There is no allegation
`that any of these doctors either attended “repeated” versions of such events or
`directed the events in any way; nor is there any allegation of any specific MitraClip
`procedures paid for by State healthcare programs, let alone specific procedures with
`any causal connection to the events alleged in the SAC. The SAC also repeatedly
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`Case 3:20-cv-00286-W-AGS Document 59-1 Filed 10/06/22 PageID.1103 Page 12 of 22
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`adds more instances of the conclusory words “nationwide,” “national,” and “in all
`states” to the existing allegations, see id. ¶¶ 145-147, 152, 154-55, 165, and adds
`some allegations about Abbott’s general—and indeed, public—marketing practices,
`such as snippets from a public earnings call discussing “market development” and a
`general description of Abbott’s training sessions, see id. ¶¶ 148, 150-51. As
`explained below, these new allegations fail to cure the deficiencies the Court
`identified, and the Court should again dismiss the State FCA claims under Rule
`9(b).
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`I.
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`ARGUMENT
`Relator Must Plausibly Plead the State FCA Claims with Particularity.
`Evaluating Relator’s State FCA claims involves an analysis similar to what
`the Court already performed on the federal claim, except that Relator must also link
`the purported AKS violations to purportedly false claims submitted for payment to
`each State. See, e.g., Health Choice All., LLC, ex rel. U.S. v. Eli Lilly & Co., Inc.,
`No. 17-CV-123, 2018 WL 4026986, at *58 (E.D. Tex. July 25, 2018), report and
`recommendation adopted, 2018 WL 3802072 (E.D. Tex. Aug. 10, 2018). And
`because Relator’s theory is that claims were false because they were caused by
`AKS violations, see SAC ¶ 57, Relator must plead with particularity that Abbott (1)
`“knowingly and willfully” (2) offered or paid remuneration, (3) “to induce” the
`purchase or ordering of products or items for which payment may be made under a
`Federal healthcare program. 42 U.S.C. § 1320a-7b(b)(2)(B).
`As the Court previously held, the State FCA claims must satisfy Rule 9(b)’s
`heightened pleading standards. Accordingly, Relator “must allege some specificity
`with respect to each asserted state.” U.S. ex rel. Nowak v. Medtronic, Inc., 806 F.
`Supp. 2d 310, 357 (D. Mass. 2011); U.S. ex rel. Saldivar v. Fresenius Med. Care
`Holdings, Inc., 906 F. Supp. 2d 1264, 1278 (N.D. Ga. 2012); U.S. ex rel. Wall v.
`Vista Hospice Care, Inc., 778 F. Supp. 2d 709, 723 (N.D. Tex. 2011); Order at 16.
`For each State, Relator must allege “particular details of a scheme to submit false
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`20cv0286
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS SAC
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`Case 3:20-cv-00286-W-AGS Document 59-1 Filed 10/06/22 PageID.1104 Page 13 of 22
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`claims paired with reliable indicia that lead to a strong inference that claims were
`actually submitted” for State payment. Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d
`993, 998-99 (9th Cir. 2010). Alleging a generalized scheme thus does not suffice to
`plead individual State FCA claims. See U.S. ex rel. Buth v. Walmart, Inc., No. 18-
`cv-840, 2019 WL 3802651, at *7 (E.D. Wis. Aug. 13, 2019) (collecting cases). In
`addition, Relator must, of course, allege “sufficient factual matter, accepted as true,
`to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009) (quotation marks omitted).
`II. Relator’s State FCA Allegations Fail Under Rule 9(b).
`The SAC fails to save the State FCA claims. As the Court’s prior order
`recognized, “it is insufficient for purposes of Rule 9(b) to merely imply state FCA
`claims based on alleged federal FCA claims.” U.S. ex rel. Chin v. CVS Pharmacy,
`Inc., No. 09-cv-1293, 2017 WL 4174416, at *8-9 (C.D. Cal. Aug. 15, 2017); see
`also, e.g., United States v. North Am. Health Care, Inc., No. 14-cv-2401, 2015 WL
`6871781, at *8 (N.D. Cal. Nov. 5, 2015) (rejecting argument that “submission of
`false federal claims necessarily implies submission of false state claims”). Instead,
`Relator “must at the very least plead facts showing how false claims were submitted
`to the states in violation of each state’s respective statute.” Chin, 2017 WL
`4174416, at *8. The Court should again dismiss the State FCA claims for lacking
`the state-specific particularity required by Rule 9(b)—namely, “‘the who, what,
`when, where, and how’ of the” purported misconduct in each alleged State. Vess v.
`Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Like its
`predecessors, the new complaint does not allege with specificity that false claims
`were submitted to State healthcare programs in violation of the State FCAs.
`A. Conclusory allegations of a “nationwide” scheme cannot support
`Relator’s state-law claims.
`Relator’s SAC attempts to cure the prior complaint’s deficiencies by adding
`the conclusory phrases “nationwide,” “national,” and “in all states” in more places,
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`20cv0286
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS SAC
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`Case 3:20-cv-00286-W-AGS Document 59-1 Filed 10/06/22 PageID.1105 Page 14 of 22
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`as if these cosmetic tweaks might provide the particularity that the Court previously
`held was absent. See, e.g., SAC ¶¶ 145-47, 152, 154-55, 163, 165. These
`insertions reveal Relator’s hope—namely, that a small handful of specific
`allegations about discrete events (involving Relator’s interactions with a small
`number of doctors) might serve as a foothold for a nationwide theory supporting
`liability under not only the federal FCA but the laws of 26 individual States. But
`vague pronouncements of a “nationwide kickback scheme,” no matter how often
`repeated, simply do not suffice. This Court already held as much when it rejected
`Relator’s State FCA claims on near-identical allegations that just used labels like
`“nationwide” less often. See, e.g., FAC ¶ 2.
`Courts have repeatedly held that “blanket allegations of a nationwide scheme
`do not meet the particularity requirement of Rule 9(b) and cannot support claims
`under other states’ [FCA] statutes.” Medtronic, 2017 WL 2653568, at *5 (holding
`that relator’s allegations of a “nationwide” kickback scheme and improper
`“nationwide marketing” were insufficient to support state-law claims); see also,
`e.g., Hericks v. Lincare Inc., No. 07-387, 2014 WL 1225660, at *8 (E.D. Pa. Mar.
`25, 2014) (ruling that relator’s “pleading that [defendant’s] allegedly illegal conduct
`occurred on a national scale . . . fails to meet the particularity standard of Rule
`9(b)”); Nowak, 806 F. Supp. 2d at 357 (holding that alleging improper marketing to
`“customers across the country” failed to support state FCA claims); Saldivar, 906
`F. Supp. 2d at 1277-78 (rejecting “allegation that Defendant engaged in a ‘national’
`fraudulent billing scheme” based on relator’s “experience in two clinics and receipt
`of national office memoranda”); U.S. ex rel. Acad. Health Ctr., Inc. v. Hyperion
`Found., Inc., No. 10-cv-552, 2014 WL 3385189, at *33 (S.D. Miss. July 9, 2014)
`(dismissing “allegations regarding a nationwide pattern of conduct” where
`complaint had alleged only generally that events at one location was “not an
`isolated occurrence”).
`The same holds true here. Relator’s conclusory assertion of a “nationwide”
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS SAC
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`Case 3:20-cv-00286-W-AGS Document 59-1 Filed 10/06/22 PageID.1106 Page 15 of 22
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`scheme cannot sustain its State FCA claims, where no particularized facts are
`alleged to support the leap that what Relator alleged for a limited geographic area
`was in fact happening throughout the country. See U.S. ex rel. Harris v. Alan
`Ritchey, Inc., No. C00-2191Z, 2006 WL 3761339, at *6 (W.D. Wash. Dec. 20,
`2006) (“allegations related to one location do not meet the pleading requirements of
`Rule 9(b) for other locations”). That is particularly so when Relator’s general
`assertions of a “nationwide” scheme stretch far beyond anything alleged to be her
`area of responsibility while working at Abbott. See Wall, 778 F. Supp. 2d at 723
`(dismissing state claim because relator’s work in Texas could not support her
`“general pleading” that “similar frauds were also perpetrated [in other states]”).
`Rule 9(b) does not permit a plaintiff with no knowledge of what occurred in other
`regions—let alone nationwide—to proceed beyond the motion-to-dismiss stage on
`such broad claims.
`Indeed, Relator’s failure to plead any state-specific facts regarding the vast
`majority of the States named in the SAC defeats the conclusory assertion of a
`“nationwide” scheme. Relator brings State FCA claims under the laws of 26
`different jurisdictions, for the purported submission of false claims to 26 different
`state or local governments. But the SAC makes specific allegations about only four
`States—and even those allegations fail to state a claim, see infra Part II.C. See
`SAC ¶ 163 (alleging aggregate reimbursement from state healthcare programs in
`California, New York, Florida, and G

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