In qui tam suit, District Court strikes affirmative defenses

by Ben Vernia | December 28th, 2011

On December 16, in U.S. ex rel. West v. Center for Diagnostic Imaging, a whistleblower suit in which the Department of Justice partially intervened, and settled certain claims, Western District of Washington Judge Robert S. Lasnik ruled that certain of the defendants’ affirmative defenses must be stricken. In his order, Judge Lasnik reached the following conclusions:

  • Public disclosure bar: The defendants adequately put the relator on notice of the basis for its defense;
  • Unclean hands: Following Ninth Circuit precedent, the defense was unavailable in a suit brought under the False Claims Act;
  • Waiver and Accord & Satisfaction: These were better dealt with following discovery;
  • Damages Caused by Third Persons: This was merely a denial of liability, and did not qualify as an affirmative defense, so it would be stricken;
  • Good Faith: Likewise, not an affirmative defense at all, and so would be stricken;
  • Ex Post Facto application of Fraud Enforcement and Recovery Act amendments to the False Claims Act: The defense fell short of providing the relator with fair notice of the basis for the defense, and so would be stricken, but with leave granted to amend the answer.

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