Humana, Inc.

In 2015, we preserved our victory for Humana in U.S. ex rel. Osheroff v. Humana, Inc., when the Eleventh Circuit affirmed the district court’s dismissal, on O’Melveny’s motion, of an FCA qui tam action brought by relator Marc Osheroff.  The unanimous decision marked the first Eleventh Circuit case to consider amendments to the FCA’s public disclosure bar provision that were enacted as part of the Affordable Care Act.  Medicare pays Humana a fixed amount on a monthly, per-patient basis to administer Medicare Advantage benefits.  Osheroff’s suit alleged that Humana and several affiliated medical clinics violated anti-kickback laws by offering potential and existing members of its Medicare Advantage plans illegal incentives to enroll, such as free food, entertainment, transportation, and other perks.  Osheroff alleged that the defendants’ claims for payment from Medicare were false because they were “tainted” by these purportedly illegal inducements.  But the Eleventh Circuit affirmed the district court’s dismissal with prejudice under the FCA’s “public disclosure bar.”  The bar requires dismissal of  suits when the underlying allegations or transactions had already been revealed through any of several public sources.  Here, the court relied on several disclosures about the extra services in newspaper articles, on the defendants’ websites, and in prior state-court filings.