FCA Settlement Does Not Bar Third-Party Claims

In Cell Therapeutics Inc. v. Lash Group Inc. (9th Cir. Nov. 18, 2009), the Ninth Circuit ruled that an FCA settlement entered into between a drug manufacturer and the government and relator did not preclude the drug manufacturer from bringing state common law claims against an expert in Medicare reimbursement protocol for having allegedly advised that the false Medicare billings were proper. Although a company found to have violated the FCA may not shift its FCA liability to a third party, the suit was not foreclosed because, first, "independent" claims for damages were asserted; and, second, a settlement agreement without an admission of FCA liability does not constitute a finding of FCA liability, which could preclude recovery against a third party.