A recent decision from the U.S. Supreme Court was a win for two local attorneys and SIU Law School graduates, who are part of a team representing whistleblowers in the case.
Dale Aschemann and Tim Keller helped bring the case – accusing pharmacy chains SuperValu and Safeway of violating the Federal False Claims Act.
"And in the area of False Claims Act practice, it really is a pretty big deal because it resonates in terms of the defenses available to defendants, saying I didn’t have the requisite knowledge to submit false claims. And the courts clarified now that the false claim says what it says and the knowledge the portions of the statute should be given their claim meaning."
Specifically, Aschemann says, the two chains were offering a price-matching program after WalMart began offering a $4 price for some 30-day maintenance prescriptions. But SuperValu and Safeway were charging Medicare and Medicaid higher prices – a violation of the False Claims Act.
The High Court struck down an appeals court ruling, sending the case back for review.
"Justice Thomas looking at the facts of our case, which we had a very developed record. He circled back to the summary judgment standard and applied those facts, even though it was a pure question of law. He raised a lot of the facts that that suggested that the defendants, in fact, knew what they were doing."
Tim Keller is Aschemann’s law partner. He says the case was a long time in coming, in part because of the way the False Claims Act works through the process.
"So when we filed in 2011, the defendants didn’t even did not know there was an action pending against them. And while it’s under seal, the government investigates the allegations and decides whether to take over the prosecution of the action from a civil context. In this case, they decided to pass on intervening in 2015 is when they both came unsealed and we proceeded on the declined cases."
Fast forward to 2023, when they both found themselves in Washington, in front of the highest court in the land. But Keller is quick to point out *he* didn’t actually argue the case:
"So that’s something I need to clarify. I don’t know how that is either, because we hired an appellate expert who actually presented the argument. Now, I was sitting there beside him, feeding him notes, making suggestions, but he’s going to gender saying actually stood up and presented the argument. But, you know, I was 8 to 10 feet away from the justices."
"It was surreal, really brought this soul in many of the practice of law, the whole," Aschemann said.
Keller says while it’s great to get a win from the Court, it’s important to remember that the legal process is long and sometimes complicated.
" If you’re going to practice law, you have to persevere. You have to work hard and you just got to keep pushing. And there’s no such thing as a clear cut case. You know, however, we see the allegations, there’s always the defense and they will mount and they’ll mount it vigorously. And you have to be prepared to spend a lot of time and a lot of money. And, you know, the process worked here, though. You know, it took it’s taken three years, but we’re back where we should be."
Aschemann, who is also on faculty at the SIU School of Law, says he expects more cases like this to come before the courts over the next several years.
"In light of last couple of years, there’s been unprecedented federal government spending. COVID related. I think we’re going to see a lot of COVID related cases. People misappropriating government funds. But a lot of those cases are under seal at present."
And Keller says cases like this one should give hope to someone who might find themselves in a whistleblower position.
"This empowers the little guy to fight back against the corporate conglomerates or even, you know, he doesn’t have to be corporate behemoths. There’s local physicians that we we brought suiting. It’s that we’re engaging in fraud. So if anybody you know, if you see something that you just doesn’t seem right and it involves federal moneys, this is an avenue that’s always available to try and right or wrong. And they get paid for their efforts up to 30% of whatever she recovered."
