Recent Whistleblower Developments at McEldrew Young

Last spring was a pretty busy time for whistleblower news at McEldrew Young.  It has been the same this year!

McEldrew Young received a positive decision for our clients on Pfizer’s motion to dismiss the second amended complaint in the Eastern District of Pennsylvania over Vfend, an azole antifungal agent. The Defendants raised argument on some of the leading areas of dispute in the False Claims Act today, including the materiality standard post-Escobar and the ability to amend the complaint to cure a first-to-file defect post-Carter. Nevertheless, the decision denied Pfizer’s motion to dismiss on all counts.

McEldrew Young represents a whistleblower in a False Claims Act lawsuit against Kimberly Clark and Halyard Health in the Northern District of Texas. The complaint alleges that the Defendants sold high performance surgical gowns to the government and Medicare/Medicaid providers that did not meet applicable standards of protection. Although our lawsuit is still near the beginning of its journey through the judicial system, a class action in California on behalf of gown purchasers secured a $454 million jury verdict at trial. The defendants have said they will appeal the verdict there.

Our attorneys have also had a few different pieces on whistleblower laws picked up by other publications recently. We expect at least one more piece to be published soon. We will be sure to share it with you when it hits the internet.

At the end of March, the Penn Record published an opinion piece that criticized prospective legislation to implement a state False Claims Act here in Pennsylvania. While approximately thirty states have already adopted such legislation, Pennsylvania has not. Eric Young and Jim McEldrew published a response titled A Misguided View of Whistleblower Laws that set the record straight on our practice area and the clients that approach us for representation. Unlike the portrayal of whistleblowers in the article, our clients are not chasing 15 minutes in the spotlight. We hope you will read both pieces and then contact your state representatives to express support for the passage of a False Claims Act here in Pennsylvania.

Eric Young and Brandon Lauria also published a blog post on SEC Rule 21F-17 at Compliance & Enforcement, a blog sponsored by NYU Law’s Program on Corporate Compliance and Enforcement, last week. SEC Rule 21F-17 is the rule that prohibits businesses from taking any steps to impede whistleblower communications with the SEC. Brandon previously discussed this topic on a webinar hosted by the The Knowledge Group. Given the recently revealed efforts by Barclays to track down one of their bank whistleblowers, it is a timely piece. Read it:  SEC Reboots Employment Agreements via Whistleblower Protections.