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FCA Litigation and Statistical Sampling

(345 reviews)

Produced on June 20, 2017

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Course Information

Time 1h 1m
Difficulty Advanced
Topics covered in this course: Litigation

Course Description

One of the current battlegrounds in cases involving large-scale fraud on the government is whether and when the government or relators may use statistical sampling to prove liability or damages. The government and relators often argue that without the ability to extrapolate results from a smaller representative sample of claims – for example, claims for reimbursement for diagnostic tests to Medicare or Medicaid – the largest frauds will go unpunished because it is impractical to try a case involving thousands of individual treatment decisions. On the other side, defendants typically object that statistical sampling and extrapolation methods deprive them of the ability to offer a defense as to each alleged false claim on an individualized basis. The resolution of this issue has dramatic consequences for many of the largest False Claims Acts cases and investigations.

Join Jeanne A. Markey, Partner and Co-Chair of the False Claims Act/Whistleblower Practice Group at Cohen Milstein Sellers & Toll, and Raymond M. Sarola, an associate in that group, as they explain and discuss the history, present state, and future implications for this evolving area of law.  

Learning Objectives: 

  1. Understand statistical sampling methods and uses
  2. Explore the history of statistical sampling jurisprudence for proving liability and damages, including recent cases from the Supreme Court and Court of Appeals
  3. Discuss the current state of the law and potential future trends and implications for large-scale FCA cases

Credit Information

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Jeanne Markey

Cohen Milstein Sellers & Toll PLLC

Jeanne A. Markey, is a Partner at Cohen Milstein and Co-Chair of the firm's Whistleblower/False Claims Act practice group. She has successfully represented whistleblowers in federal and state cases across the country. Ms. Markey has extensive experience in Qui Tam litigation in the health care, defense and education industries, and has represented whistleblower clients in the public housing sector. 

Ms. Markey is co-lead counsel in United States of America et al., ex rel. Lauren Kieff, v. Wyeth, a high-profile whistleblower case against pharmaceutical giant Wyeth (recently acquired by Pfizer). The lawsuit alleges that Medicaid, the healthcare program for the poor which is jointly funded by the federal and state governments, was defrauded when Wyeth falsely inflated the price of the acid suppression drug Protonix Oral from 2001 through 2006. Thirty-six states and the District of Columbia have joined with the United States to intervene in the Wyeth case – more states than have ever intervened in any other U.S. Qui Tam case.

She also served as the primary attorney representing the putative class in Benzman v. Whitman, a class action in Manhattan and Brooklyn against the U.S. Environmental Protection Agency. The claims were based on class members’ exposure to contaminants contained in World Trade Center interior dust resulting from the 9/11 attacks.  

Ms. Markey is admitted to practice law in the Commonwealth of Pennsylvania, the Eastern District of Pennsylvania and to the First Circuit Court of Appeals, Second Circuit Court of Appeals, and Eleventh Circuit Court of Appeals. She is a member of Taxpayers Against Fraud, a nonprofit, public interest organization dedicated to combating fraud against the Federal Government through the promotion and use of the Federal False Claims Act and its Qui Tam provisions, the Association of Qui Tam Attorneys, and frequently speaks about developments in the Qui Tam field. She received her B.A. (cum laude) from Colgate University and her J.D. from Cornell University Law School. 

Ray Sarola

Cohen Milstein Sellers & Toll PLLC

Raymond M. Sarola is an Associate at Cohen Milstein, and a member of the Firm’s Whistleblower/False Claims Act and the Ethics and Fiduciary Counseling practice groups. Mr. Sarola represents whistleblowers in cases brought under the federal and state false claims acts in a wide range of industries that conduct business with the government, including health care, defense and financial services. As a member of the Firm’s Ethics and Fiduciary Counseling practice, Mr. Sarola calls on his experience as a trustee on the New York City pension fund boards in counseling public pension funds fiduciary issues.

Mr. Sarola’s experience includes both government service and corporate litigation. Prior to joining the firm, he served as Senior Policy Advisor & Counsel in the Mayor's Office of the City of New York. While there, he represented the Mayor and Commissioner of Finance on the boards of the City's pension systems and deferred compensation plan and advised on legal issues regarding pension investments, benefit payments, securities litigation and corporate governance initiatives. Previously, Mr. Sarola was a litigation associate at a noted defendants’ firm, where he represented companies and individuals in securities and other complex commercial litigation, internal investigations and antitrust matters.


Steven M.

Looking forward to an update.

Jamey B.

Presenters provide necessary conceptual background to sampling, enhancing the legal topics.

Thomas S.

This isn't my area of practice, but I found it interesting and nerded out on the cases.

Kenneth F.

Outside my usual practice area, but it was an informative, professional presentation of the material, The tandem speakers complimented each other well.

Clifford H.

Would love to see more of these type of CLEs, going in-depth into particular issues in expert testimony.

Ron V.

Very interesting topic. It provides an excellent background for the admissibility of statistical analyses.

jesse s.

Good course

Barbara B.

love the jelly beans

Harold L.

Good presentation.

Eugene S.

Excellent use of jelly beans to illustrate the point. This sort of demonstration is rare in CLE.

Benjamin S.

Thank you!

Daniel O.

Recommended to a colleague during the call.

Julie P.

Thank you.

Heather S.

Excellent CLE. Very informative and the information was presented in a clear and concise manner. Thank you

Richard H.

Good sampling of relevant materials and basic primer on the topic

William H.

Very able presenters.

Annie S.

Strong faculty

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