On July 20, 2022, Greene LLP announced that Biogen, Inc. reached an agreement to pay $900 million to resolve claims brought by a former employee that Biogen unlawfully paid kickbacks to physicians and other healthcare professionals, in violation of the False Claims Act. Greene LLP represented the former employee in the qui tam case, in which the federal government did not intervene.
While employed at Biogen, the relator reported concerns about Biogen paying improper kickbacks to the compliance department, which did not take any corrective action. Then, in 2012, the relator went to the United States government, stating his belief that Biogen was improperly paying kickbacks to some of its largest prescribers, to discourage them from prescribing Biogen’s competitors products.
The Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) asked the relator to record conversations with Biogen employees that could help to substantiate his allegations. The recordings helped to confirm that Biogen was deliberately giving “substantial monetary and non-monetary compensation to some of its most important prescribers to influence their prescribing.”
In April 2012, the relator – through his counsel – filed a lawsuit in the United States District Court for the District of Massachusetts under the federal False Claims Act and the false claims acts of several states, alleging that Biogen knowingly paid its largest prescribers for services Biogen did not need (and never intended to use) to prevent its multiple sclerosis drugs from losing market share to newer drugs.
The lawsuit alleged that Biogen paid hundreds of its customers to provide consulting advice on topics that Biogen either could not use or for which the company had all the information it required. Biogen also allegedly paid health care professionals to speak when there was no demand for presentations and Biogen knew that its prospective speakers would likely not meet their minimum speaking requirements, compensating at a rate higher than fair market value.
According to the lawsuit, in 2009 and 2010, Biogen paid $18 million to more than 1,000 healthcare providers writing prescriptions, totaling roughly 60% of the multiple sclerosis market. The millions were paid via “sham speaker” and consultant programs, as well as lavish meals and entertainment. The scheme allegedly continued until 2014, resulting in “hundreds of millions of dollars in false reimbursement claims for Biogen’s MS drugs to government healthcare programs, including Medicare and Medicaid.”
In July 2015, the United States informed the District Court that it would not intervene in the lawsuit. However, Greene LLP continued to pursue the case and ultimately achieved the $900 million settlement.
Biogen disclosed the settlement in its second quarter results filed with the Securities and Exchange Commission. The agreement does not include any admission of liability and is subject to the negotiation of final settlement agreements and documents. In an emailed statement, the company noted that “we are resolving this matter to avoid the distraction of litigation and to allow the company to focus on our strategic priorities and the patients we serve.”
“We believe this settlement represents the largest recovery in the over 150 years of False Claims Act cases to be secured by a whistleblower without the intervention or participation of the United States,” said attorney Thomas M. Greene, who served as the relator’s lead counsel throughout more than a decade of litigation.