The U.S. District Court for the Middle District of Florida dismissed with prejudice a qui tam action alleging that Taft’s client, medical device company Theken Companies, LLC, violated the False Claims Act (FCA) by supposedly (i) using royalty agreements as a vehicle for kickbacks and (ii) retaliating against the relators (i.e., the whistleblowers who filed the qui tam) by causing criminal charges to be filed against them. U.S. ex rel. 3DQA LLC v. Theken Companies et al., 22-cv-00373, (M.D. Fla. 2026), Doc. 97. The relators had alleged over $118 million in FCA fraud damages and penalties and millions more as a result of the claimed retaliation.
In granting Defendants’ motion to dismiss the FCA fraud claim, the Court concluded that the FCA’s first-to-file rule barred the whistleblowers claims because an earlier-filed action had alleged a substantially similar scheme. The Court colorfully explained: “The FCA is clear: ‘if you ain’t first, you’re last.’ Talladega Nights: The Ballad of Ricky Bobby (Columbia Pictures 2006).”
As for the FCA retaliation claim, the Court agreed with Defendants that the FCA’s anti-retaliation provision does not provide a remedy for alleged retaliation that occurs after a plaintiff is no longer employed by a defendant. In this case, the whistleblowers did not file a qui tam against Defendants until approximately four years after their employment ended.
The ruling reinforces the strict operation of the FCA’s first-to-file rule and adds to the developing authority on whether the statute’s anti-retaliation provision covers post-employment conduct.
The Taft team included Cleveland attorneys Jackson Froliklong and Devina Patel and Chicago partner Pete Deegan.
Froliklong is an experienced litigation attorney in Taft’s Cleveland office. He focuses his practice on complex commercial litigation, investigations, white collar defense, and the False Claims Act. Prior to joining Taft, he was an assistant U.S. attorney with the U.S. Attorney’s Office for the Northern District of Ohio.
Patel is an associate in the Franchise and Litigation groups. Prior to joining Taft, she worked as a criminal justice clinic investigative intern at Georgetown University Law Center investigating and preparing evidentiary reports and conducting trial preparation activities.
Deegan is a former U.S. Attorney with extensive national experience in white collar criminal litigation and corporate compliance. A seasoned trial lawyer and partner in Taft’s Compliance, Investigations, and White Collar Defense practice, Pete’s client work is distinguished by his ability to navigate complex investigations and prosecutions.
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