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Qui Tam 2019 is the second annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle — plus government prosecutors, agency representatives, and subject-matter experts. Here the co-chairs of Qui Tam 2019, Megan Jeschke of Holland & Knight and Assistant U.S. Attorney Darrell Valdez, provide a brief overview of the conference and explain how it'll reflect the Justice Department's recent focus on opioid-related fraud.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on October 23, 2018.
Qui Tam 2019: A Preview from the Co-Chairs
» Click here for registration and full details on Qui Tam 2019
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: We are here with our two co-chairs of this year’s Federal Bar Association Qui Tam Section Annual Conference. That’ll be on February 28 and March 1 of 2019.
Darrell Valdez, Assistant United States Attorney for the District of Columbia …
Darrell Valdez: Good morning.
Oswald: … and Megan Jeschke, partner at Holland & Knight. Thank you very much for taking the time to speak with me about the conference.
So we’ve had a number of discussions about what the theme of this year’s conference would be. Megan, give us a sense of what the theme will be.
Megan Jeschke: Absolutely. This year we really wanted to look at the more complex — or nuanced, or perhaps more unique — aspects of litigating, settling, and evaluating these qui tam cases from all perspectives. So from the beginning of [a case], looking at subjectivity issues … and when should we proceed, all the way down to the end of the case, to when we’re mediating and dealing with the ability to pay.
And the theme on top of that — there’s a theme within a theme. [After we’ve had] several panels that talk about all these nuanced topics, we’re going to explore [the same topics] at the end through the lens of the opioid crisis: Where do these things fit in within a case that involves fraud in the opioid space?
Oswald: So really the two days are structured, in a way, to take advantage of those complex topics from the outset.
Jeschke: Absolutely. Each individual panel is going to deal with one specific topic — and I think, Darrell, you can share a little bit more about how each panel is going to be set up. But within each panel we’re going to talk about one direct topic. You’re going to have experts, you’re going to have defense counsel, you’re going to have qui tam counsel, and you’re also going to have representatives from the Department of Justice and agencies there, sharing on each of those topics.
And then, at the end, we’re going to bring in some subject-matter experts relative to the opioid issue — to explore those issues that we’ve talked about over the past two days, and see how they might fit into that type of case.
Oswald: Darrell, talk to us about a couple of the panels that you’re looking forward to having at the conference.
Valdez: Well, as Megan said, our panels are going to be made up of every side in a qui tam or False Claims Act case. We’re very excited about some of the panels that we have, which will go into the meatier side of what we do as False Claims Act attorneys, whether it be defense or plaintiff.
One of the panels that a lot of private-bar attorneys are interested in is our ‘Ability to Pay’ panel, on how the Department of Justice determines a defendant’s, or target’s, ability to pay. And in fact, we will have the ability-to-pay guru, Eileen Zimmer from the Department of Justice — who actually does the ability-to-pay analyses for the department — come as a panel member to explain her process. So it really won’t be a black box [anymore] for somebody who comes to us with the claim that “I can’t afford to pay a $20 million judgment: How can I still keep my business going and pay what I can to settle this case?”
Ms. Zimmer is there to explain that it’s not that scary a process, and [to explain] her process for evaluating, as well as [to answer] questions. For instance, if somebody’s got a question about what happens with the information that she receives about the target in a case where the settlement is [never] reached: Can the other side discover that, take that information in discovery? Those would be things to ask her — she can give you the answer.
Oswald: So it sounds to me like we’re going to lift the curtain here on the whole ability-to-pay analysis?
Valdez: [Laughing] Yeah, I don’t know if the Department of Justice is happy about me doing that. But yes, we’re doing that, so that it’s not such a scary proposition for a target.
Oswald: Tell me about one of the other panels that we’re going to dig deep into. Maybe the statistical analysis panel, because I know that’s a hot topic?
Valdez: Well, it is. I think it’s very much an up-and-coming topic with respect to false claims — especially in the healthcare fraud setting, where claims are sent in via computer once a week, once every two weeks, and it’s just multiple claims. I think that [panel] would be good for defense counsel, who are going to be facing a situation where either the government or relator’s counsel will attempt to prove a big-dollar case by statistical sampling.
Another part of that [panel] is the use of algorithms, where we have a question about what constitutes a violation when we have just a whole morass, or a whole pile, of documents, from which a party has to sit down and figure out how many [individual] false claims are in there. [We’ll discuss] not only the statistical sampling [aspect] of valuing it, but actually figuring out and counting the numbers. That has actually been used in several cases recently. I’ve seen it in one of my cases, and I think that it’s something that we’re all going to have to be looking at and facing and understanding.
Jeschke: You know, one of the great things about that panel that I’m looking forward to is how we’re dealing with the nuts and bolts of sampling. Obviously we’ll talk a little bit about the case law — the panelists will talk about the case law, and the developments in the law there. But we have an expert statistician who’s going to be talking about how you set up a sample: What does that look like? And giving some guide rails for practitioners, particularly on the relator’s side, and evaluation points for the defense side as to what should you be looking for. And assuming we go down the route of having a statistical sample, what does that look like in terms of actually pulling the amount vis-a-vis another [case]? Obviously every case is going to be different, but he can provide you some guidance there.
And then, as Darrell said, the [use of] algorithms is increasing significantly, given the number of the claims involved. So how does the algorithm process work? What do they do, and what do they look at? I’m looking forward to hearing those really detailed points.
Oswald: Make the process a little less scary for those of us who don’t like math.
Jeschke: [Laughing] True, very true.
Oswald: Darrell, talk to us about the benefits of the conference, especially for government attorneys, over these two days. If I’m a government attorney, how do I make the case that this is something that I should attend?
Valdez: Well, I think it’s important that government attorneys not do their job within the walls of their office the whole time. You have to understand, and you have to know the people that we deal with on the defensive side and not only the relator side.
I mean, we see relators and relator’s counsel more often than others, but we also have to meet defense counsel and understand them. I don’t like it when I’m presenting a case to the counsel for a target, or to a defendant, and I don’t know those folks very well and there’s this kind of cold wall between us. Versus, if it’s somebody that I know, we can really talk to each other, and we’re able to be more relaxed in the way we talk to each other — and to share more information because of that attorney trusting me, or I trust that attorney more, because we know each other.
I think that’s important here for the government attorney: To get to know defense counsel as well, and learn that they’re not the enemy. Oftentimes they’re just here to represent their client. We’re here to find out, is there a case or not. And, as you maybe don’t know, more often than not there’s not a case that the government wants to take. And so we don’t need to make that relationship an adversarial-type relationship. We can work together to reach that goal of determining if we need to intervene or not.
Oswald: Got it. For those watching who have been [at the conference] last year, what can they expect to be different about this year’s conference?
Valdez: Well, last year’s conference basically took a case from the cradle to the grave and went through the whole process from pre-litigation, pre-filing, all the way through the trial.
For this one, Megan and I decided we wanted to put a little more meat on the bone, so to speak, and go into more detail about what an experienced litigator will be facing and what would interest the more experienced litigators in this area. That’s why we’ve decided to go into more complex areas of false claims that, as an experienced litigator, you’re going to see — you’re going to run into them.
And, so I think this one of those situations where we can help you understand, one, what the process is when you get these more complex cases; and two, where the resources are to help you find experts, or any other assistance you need in preparing your case.
Oswald: Some of these experts will be on these panels?
Valdez: Correct. And it will help you understand, as Megan stated. Like for instance, the statistical expert will explain how statistical sampling works. And that way, when you’re talking to your expert — and you’re retaining an expert, or looking for one — you’ll know which ones you really want, [who work] more in line with what the case law will allow.
So that’s one of the things we’ll [take a] better look at with this conference.
Oswald: Megan, talk to us about our keynotes. We’ve got two of them of this year —
Jeschke: We do!
Oswald: Can you tell us a little bit about them?
Jeschke: Sure, we are very excited for these two keynotes. We’ve secured the Assistant Attorney General Jody Hunt, and we’ve also secured the acting Inspector General for the Department of Defense, Glenn Fine. Both of them have just a spectacular reputation in this field, and they have both enthusiastically agreed to participate and provide keynote speeches, one on each day, during the lunch sessions. We’re very excited to hear what they have to say and talk a little bit about the policies that they’re looking at, and the industry as a whole, and to get their sense of where they see this going — and where we can all work together to resolve these types of cases, as Darrell said, in the most efficient way possible.
Oswald: So with Glenn Fine, this is probably someone that if we’re filing a procurement-type defense case, he’s important to us, on the relator side and on the defense side.
Jeschke: Absolutely, yes. At every level, someone high up in the enforcement realm is looking at these cases from a policy perspective. Having the thought process of those key opinion leaders on what policies matter — or what cases need to be brought, what cases need to be pursued — is absolutely important for the practitioner.
Valdez: Just real quick: As Megan says, it’s important because they are the ones. Everybody seems to think that the Department of Justice is the one who makes the intervention decision, and that is true to a degree. [But] we do seek the concurrence and consultation of general counsel for the Inspector General’s offices that we’re working with. So it’s good to get somebody from that perspective in on the [conference] so that people understand, again, another part that they’re really not familiar with about the intervention and investigation process for the government.
Oswald: And with Jody Hunt, we should get a good perspective on where the department sees its enforcement going in the future.
Jeschke: Absolutely. Having that level of insight and participation with the Department of Justice and being able to share that with our participants this year at the conference is just going to be a valuable takeaway for everyone. I’m really looking forward to hearing what Jody Hunt has to say.
Oswald: Megan, Darrell, thank you very much.
[Addressing camera] We’re looking forward to having all of you at this year’s Qui Tam Section annual conference on February 28 and on March 1 of 2019. Sign up at fedbar.org. We look forward to seeing you.