United States of America et al v. RS Compounding LLC et al
ORDER: Defendant Renier Gobea's Motion to Dismiss the United States' Amended Complaint in Partial Intervention (Doc. # 74 ) is DENIED. Defendant RS Compounding LLC's Motion to Dismiss the United States' Amended Complaint in Partial Intervention (Doc. # 75 ) is DENIED. Defendants' Answers to the United States' Amended Complaint in Partial Intervention are due December 15, 2017. Signed by Judge Virginia M. Hernandez Covington on 12/4/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA,
ex rel. MCKENZIE STEPE,
Case No. 8:13-cv-3150-T-33AEP
RS COMPOUNDING LLC d/b/a
ZOE SCRIPTS LABORATORY SERVICES,
LLC and d/b/a WESTCHASE
and RENIER GOBEA,
States’ Amended Complaint in Partial Intervention (Doc. # 74)
and RS Compounding LLC’s Motion to Dismiss the United States’
Amended Complaint in Partial Intervention (Doc. # 75), both
filed on October 31, 2017. The United States responded on
November 21, 2017. (Doc. # 85). For the reasons that follow,
the Motions are denied.
Gobea “co-founded RS Compounding . . . with Dr. Stephen
Caddick in 2004 . . . . Gobea is the current owner and director
of RS Compounding.” (Doc. # 42 at ¶ 10). RS Compounding is a
compounding pharmacy that does business as Zoe Scripts and
Compounding’s products were prescribed to uninsured patients,
patients covered by private insurance, and those covered by
federal healthcare programs, such as TRICARE. (Id. at ¶¶ 12,
TRICARE is the federal healthcare program that “provides
coverage for approximately 9 million active duty military
personnel and their families.” (Id. at ¶ 12). “TRICARE’s
relationships.” (Id. at ¶ 27). One type of abuse is “charging
[TRICARE] beneficiaries rates for services and supplies that
are in excess of those charges routinely charged by the
provider to the general public.” (Id.).
Express Scripts, Inc., is “the TRICARE retail and mail
beneficiaries.” (Id. at ¶ 21). In turn, Express Scripts has
a contract with “the Strategic Health Alliance, the Pharmacy
Services Administrative Organization that assists pharmacies
Express Scripts.” (Id. at ¶¶ 22, 24). “RS Compounding agreed
to the terms in the contract between Express Scripts and its
Pharmacy Services Administrative Organization when it became
a TRICARE provider on June 5, 2009.” (Id. at ¶ 25).
The United States alleges that “[f]rom January 1, 2012
to January 31, 2014, the Defendants knowingly submitted, or
caused to be submitted, thousands of false claims to TRICARE,
which resulted in millions of dollars of reimbursement that
would not have been paid but for the Defendants’ misconduct.”
(Id. at ¶ 3). This alleged fraud was brought to the United
States’ attention by Relator McKenzie Stepe, who worked for
RS Compounding as a sales representative from November 2011
to February 2013. (Id. at ¶ 7).
The Alleged Fraud
“In a break with the traditional use of compounded drugs,
Defendants took advantage of the high reimbursement rates for
compounded prescriptions by mass-producing these compounds
individualization of the compounds.” (Id. at ¶ 35). When
wholesale companies sold medications to RS Compounding, they
“reported to RS Compounding two prices: the Average Wholesale
Price and the acquisition price.” (Id. at ¶ 36). While the
“acquisition price was the price RS Compounding actually paid
for the medication,” the Average Wholesale Price was higher
and “was reported to nationally recognized pricing sources
and third party payors, including TRICARE.” (Id. at ¶ 37).
Indeed, TRICARE “limits the amount it will pay for
customary price or the maximum allowable cost.’” (Id. at ¶
ingredients,” meaning “the average price at which wholesalers
pharmacies.” (Id. at ¶ 26). Under the Express Scripts manual
for pharmacies, the usual and customary price is the cash
Medication in a cash transaction at the Pharmacy dispensing
the Covered Medication (in the quantity dispensed) on the
date that it is dispensed, including any discounts or special
promotions offered on such date.” (Id. at ¶ 24). “The Express
include the Pharmacy’s Usual and Customary retail price,
including all discounts on applicable date of fill’” — a
requirement to which RS Compounding is allegedly bound. (Id.
at ¶¶ 24-25).
Using the pharmacy’s “Compounder” software system, RS
Compounding “reported the Average Wholesale Price . . .
instead of its acquisition cost” in its records. (Id. at ¶¶
38-39). And, “rather than separately calculating or computing
prescription], the Compounder software had an ‘Equalizer’
button that made the Usual and Customary cost of the compound
equal to the Average Wholesale Price.” (Id. at ¶ 40). Thus,
prescription, RS Compounding reported to TRICARE both an
Average Wholesale Price and a Usual Customary Price,” which
“[w]ith few, if any exceptions” were the same price. (Id. at
¶ 42). As a result, the United States alleges, “RS Compounding
did not separately report to TRICARE the true Usual and
Customary price — that is, the price paid by cash paying
patients.” (Id. at ¶ 43). “Since TRICARE pays the lesser of
the Average Wholesale Price and the Usual and Customary Cost,
by equalizing the two amounts Defendants guaranteed payment
of the inflated Average Wholesale Price.” (Id. at ¶ 44).
January 1, 2012 until January 31, 2014, RS Compounding sold
the exact same compounds to government and cash payors for
drastically different prices.” (Id. at ¶ 45). The United
States provides charts indicating the different rates charged
for two of RS Compounding’s medications, with the price per
gram charged to TRICARE far exceeding the price per gram paid
by cash buyers. (Id. at ¶¶ 54, 61). For those two compounded
medications, the United States alleges RS Compounding charged
between 2,000 and 2,100% “more for the exact same compound
than it charged cash payors.” (Id. at ¶¶ 55, 62).
The United States also provides charts listing sample
claims for drugs with inflated prices that were actually
submitted to TRICARE. (Id. at ¶¶ 58, 65). For example, the
United States identifies a prescription dispensed on August
15, 2012, for patient C.E. (Id. at ¶ 65). Although the cash
Compounding charged TRICARE $990.00. (Id.). According to the
United States, “[i]f TRICARE knew it was paying over 2,000%
more than cash payors, it would not have paid such high
reimbursements to RS Compounding.” (Id. at ¶ 57).
altered its reimbursement scheme to stop offering the same
formulations to cash payors and TRICARE.” (Id. at ¶ 47). This
change was made because, on January 27, 2014, “Silas Raymond,
provided to cash-paying patients at a discounted price.” (Id.
at ¶ 48). At Raymond’s request, Megan Stead, a pharmacy
technician and Manager of Customer Service, drafted a new
discounts offered to cash paying customers to government
payors (like TRICARE), RS Compounding’s new policy instead
A new formulation was created just for cash
payors and “offered cash payors the same low costs.” (Id. at
¶ 50). “At that same time [RS Compounding] continued offering
its ‘custom’ formulations to insured patients at inflated
According to the United States, the means by which RS
Compounding changed its billing practices – i.e. no longer
providing the exact same formulations to cash payors and
previously charged to cash payors — is meaningful. In the
TRICARE high rates confirms that RS Compounding knew “of the
unlawfulness of its disparate pricing scheme.” (Id. at ¶ 52).
knowledge, neither Gobea nor RS Compounding made any attempt
to refund the difference between the price paid by cash payors
and the amount submitted for reimbursement to TRICARE.” (Id.
at ¶ 53).
Gobea’s Alleged Personal Involvement
The United States alleges “Gobea knowingly participated
Compounding’s products and, as such, the amounts for which
Defendants submitted claims to the government” and “knowingly
participated in falsely certifying the Usual and Customary
price to TRICARE.” (Id. at ¶¶ 80-81). The United States
emphasizes that Gobea is the owner and sole shareholder of RS
officers or directors besides Gobea.” (Id. at ¶¶ 66, 86).
receiving a monthly salary of up to $120,000 and taking
pleased” without a “set schedule or procedure for these
distributions Gobea gave himself have significantly impaired
RS Compounding’s ability to pay its obligations under the
[FCA].” (Id. at ¶ 85).
According to the United States, “[f]ew details about
Gobea’s business were too small to merit his attention.” (Id.
at ¶ 73). He hired and fired employees, approved the costs of
different type of compound base that had a ‘significantly
higher’ Average Wholesale Price.” (Id. at ¶¶ 73, 75-76).
Gobea “requested that he see every audit response before it
was submitted to Express Scripts” and “became involved when
legal and regulatory matters arose.” (Id. at ¶¶ 75, 77). Gobea
was informed by Stead “of the policy change to cease offering
identical formulations to TRICARE and cash payors.” (Id. at
effort to return the exorbitant amounts his company had
charged TRICARE.” (Id.).
Alternatively, the United States alleges that Gobea at
least “deliberately ignored and/or recklessly disregarded the
TRICARE” and “the fraudulent practices of his employees.”
(Id. at ¶ 68).
On December 16, 2013, Relator Stepe filed her Complaint
against RS Compounding and John Doe Corporations 1-10 under
seal, alleging violations of the False Claims Act (FCA), 31
U.S.C. § 3729(a), and Florida’s state equivalent of the FCA.
(Doc. # 1). On April 28, 2017, the Government elected to
intervene in part as to the fraudulent pricing allegations,
but not as to the “remaining allegations (including [Stepe’s]
fraudulent marketing and promotional allegations).” (Doc. #
intervention on June 30, 2017, and subsequently filed its
Amended Complaint in partial intervention on September 9,
2017, against RS Compounding and Gobea only. (Doc. ## 36,
42). The Amended Complaint in partial intervention asserts
claims for various violations of the FCA and for unjust
enrichment. (Doc. # 42).
RS Compounding and Gobea filed their Motions to Dismiss
the United States’ Amended Complaint in Partial Intervention
on October 31, 2017. (Doc. ## 74, 75). The United States
responded on November 21, 2017. (Doc. # 85). The Motions are
ripe for review.
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
Rule 9(b) of the Federal Rules of Civil Procedure imposes
fraud. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301,
1305 (11th Cir. 2002). The complaint must allege “facts as to
time, place, and substance of the defendant’s alleged fraud,
fraudulent acts, when they occurred, and who engaged in them.”
Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1324 (11th Cir.
principally at stopping the massive frauds perpetrated by
large contractors during the Civil War.” Universal Health
Servs., Inc. v. United States ex. rel. Escobar, 136 S. Ct.
1989, 1996 (2016)(internal quotation marks omitted). “Since
then, Congress has repeatedly amended the Act, but its focus
remains on those who present or directly induce the submission
of false or fraudulent claims.” Id. The FCA’s civil penalties
are “essentially punitive in nature” and subject defendants
to treble damages plus penalties of up to $10,000 per claim.
Id. (internal quotation marks omitted).
The FCA may be enforced by the government or by a relator
Government.” 31 U.S.C. § 3730(b). Here, the United States has
alleges violations of three subsections of the FCA, as well
as asserting a claim for unjust enrichment. (Doc. # 42).
Complaint in partial intervention does not satisfy Rule 9(b)
particularity, nor are the RS Compounding employees engaged
in the fraud specifically identified. (Doc. ## 74, 75).
Additionally, RS Compounding argues the allegations plead a
mere breach of contract rather than FCA violations, and no
obligation to repay the United States is identified for the
“reverse false claims” claim. (Doc. # 75 at 5-7).
The Court will address each claim in turn.
First Claim for Presentation of False Claims
Compounding and Gobea violated § 3729(a)(1)(A) of the FCA
when they “knowingly presented or caused to be presented false
or fraudulent claims for payment or approval.” (Doc. # 42 at
¶ 89). “As a result, the United States has suffered damages
payments made to Defendants.” (Id. at ¶ 90).
Section 3729(a)(1)(A) imposes liability on any person
who “knowingly presents, or causes to be presented, a false
or fraudulent claim for payment or approval.” 31 U.S.C. §
3729(a)(1)(A). The key issue under § 3729(a)(1)(A) is whether
the defendant “presented or caused to be presented” a false
claim. Urquilla–Diaz v. Kaplan Univ., 780 F.3d 1039, 1052
(11th Cir. 2015)(quoting Hopper, 588 F.3d at 1325–26). The
United States “must allege the actual presentment of a claim
. . . with particularity, meaning particular facts about the
quotation marks omitted).
“Providing exact billing data — name, date, amount, and
services rendered — or attaching a representative sample
claim is one way a complaint can establish” presentment of a
false claim. United States ex rel. Mastej v. Health Mgmt.
“However, there is no per se rule that an FCA complaint must
provide exact billing data or attach a representative sample
claim.” Id. (citing Clausen, 290 F.3d at 1312 & n.21). Rather,
a complaint must contain “some indicia of reliability” that
a false claim was actually submitted. Clausen, 290 F.3d at
1311; see also United States ex rel. Patel v. GE Healthcare,
Inc., No. 8:14-cv-120-T-33TGW, 2017 WL 4310263, at *6 (M.D.
Fla. Sept. 28, 2017)(“[A] relator with first-hand knowledge
of the defendant’s billing practices may possess a sufficient
claims.” (citing Mastej, 591 F. App’x at 704)).
Here, RS Compounding and Gobea argue that the submission
“completely fails to allege which RS Compounding employees
assertedly violated the [FCA] by breaching the usual and
customary pricing clause in TRICARE’s contract with Express
Scripts.” (Doc. # 75 at 4). RS Compounding also argues that
the United States has alleged only a contractual breach of
its agreement not to charge TRICARE more than other customers
because the United States does not allege that “RS Compounding
entered into its contract with Express Scripts on behalf of
the TRICARE program with the intent to violate the usual and
customary price provision.” (Id. at 5).
The Court disagrees. The names of the specific employees
who submitted the false claims are not required to satisfy
Rule 9(b). For example, in United States ex rel. Matheny v.
Medco Health Sols., Inc., 671 F.3d 1217 (11th Cir. 2012), the
Eleventh Circuit found that the failure to “specify by name
or title the person who actually pushed the send button” on
the false claims was not “fatal to Relators’ Complaint.” Id.
at 1230; see also United States v. Berkeley Heartlab, Inc.,
247 F. Supp. 3d 724, 732 (D.S.C. 2017)( “[N]either the FCA
within a defendant corporation. The FCA imposes liability on
‘[a]ny person who’ commits certain violations, and for the
Furthermore, the Court finds that the United States has
not merely alleged a breach of contract. True, “[t]he [FCA]
is not ‘an all-purpose antifraud statute,’ or a vehicle for
punishing garden-variety breaches of contract or regulatory
violations.” Escobar, 136 S. Ct. at 2003 (2016)(internal
citation omitted). But some breaches of contract can also
requisite scienter, [makes] a request for payment under a
contract and ‘withh[olds] information about its noncompliance
with material contractual requirements.’” United States v.
Triple Canopy, Inc., 775 F.3d 628, 636 (4th Cir. 2015), cert.
granted, judgment vacated sub nom. Triple Canopy, Inc. v.
U.S. ex rel. Badr, 136 S. Ct. 2504, 195 L. Ed. 2d 836 (2016),
and opinion reinstated in relevant part, 857 F.3d 174 (4th
Cir. 2017)(citation omitted); see also United States ex rel.
Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 824 (7th Cir.
2011)(“[A] mere breach of contract does not give rise to
liability under the False Claims Act. If the breaching party
falsely claims to be in compliance with the contract to obtain
scienter requirements” is the best means to
ordinary breaches of contract are not converted into [FCA]
liability.” United States v. Sci. Applications Int’l Corp.,
626 F.3d 1257, 1270-71 (D.C. Cir. 2010). Here, the United
States alleges that RS Compounding and Gobea were aware they
were violating a material term of their agreement with the
government – to charge TRICARE the same prices as cash payors
— but withheld that information in order to receive highlyinflated reimbursements. For the motion to dismiss stage,
such allegations go beyond a mere breach of contract by
sufficiently alleging materiality and scienter.
In sum, the United States has sufficiently pled with
particularity that RS Compounding and Gobea knowingly charged
representation that they charge TRICARE the same prices paid
by cash payors. Here, instead of employee names, the United
patients. (Doc. # 42 at ¶¶ 58, 65). And, for various compounds
calculations comparing the total number of grams that were
prescribed to TRICARE and cash payors, the total price of
prescriptions. (Doc. # 42 at ¶¶ 54, 61). This is sufficient
for the pleading stage.
As for Gobea’s argument that there are insufficient
allegations about his involvement in the fraud and veil
piercing, the Court disagrees. Although the United States has
not pled an instance of Gobea personally submitting a false
claim or statement, it has pled facts about Gobea’s “extensive
involvement in RS Compounding’s day-to-day operations.” (Doc.
# 42 at ¶¶ 71-87; Doc. # 85 at 12-15). The Court is mindful
that Rule 9(b) is a heightened, but not insurmountable,
standard. And the Eleventh Circuit has advised that scienter
need not be pled with particularity. See Urquilla-Diaz, 780
F.3d at 1051 (“Rule 9(b) provides that a party alleging fraud
‘must state with particularity the circumstances constituting
fraud’ but may allege scienter generally.”). Here, the United
participated in the alleged FCA violations, or at least
deliberately ignored or recklessly disregarded the fraudulent
Furthermore, the United States’ allegations provide an
adequate basis for piercing RS Compounding’s corporate veil
and holding Gobea personally liable for the alleged fraud.
The federal common-law test for corporate veil piercing asks
whether (1) “there is a unit[y] of interest and ownership
among Defendants that makes their separate personalities no
longer exist” and (2) “an inequitable result would flow from
treating Defendants separately.” United States ex rel. Lawson
v. Aegis Therapies, Inc., No. CV 210-72, 2013 WL 5816501, at
*4 (S.D. Ga. Oct. 29, 2013)(citation omitted). The Court
agrees with the United States that the Amended Complaint in
partial intervention sufficiently alleges that there is a
Compounding and Gobea. (Doc. # 85 at 15-16). Gobea was RS
Compounding’s sole shareholder and officer who received a
high salary and took “shareholder distributions from the
company whenever he pleased.” (Doc. # 42 at ¶¶ 66, 83-86).
The United States also argues that it would be unjust to
allow Gobea to escape personal liability because Gobea has
removed most ill-gotten gains from RS Compounding such that
RS Compounding is unable to pay back the millions paid to it
Complaint in partial intervention, the United States alleges
that the “salary and distributions Gobea gave himself have
significantly impaired RS Compounding’s ability to pay its
obligations under the [FCA].” (Doc. # 42 at ¶ 85). Thus, at
the motion to dismiss stage, the United States’ veil piercing
Second Claim for False Records or Statements
Next, the United States alleges RS Compounding and Gobea
violated 31 U.S.C. § 3729(a)(1)(B) because they “knowingly
made, used, or caused to be made or used, false records or
statements — i.e., the false certifications of its Usual and
Customary Price made or caused to be made by Defendants —
material to false or fraudulent claims.” (Doc. # 42 at ¶ 92).
“As a result, the United States has suffered damages in the
form of millions of dollars in unearned TRICARE payments made
to Defendants.” (Id. at ¶ 93).
Section 3729(a)(1)(B) creates liability for any person
who “knowingly makes, uses, or causes to be made or used, a
false record or statement material to a false or fraudulent
claim.” 31 U.S.C. § 3729(a)(1)(B). Thus, “[t]o prove a claim
under § 3729(a)(1)(B), [the United States] must show that:
statement, (2) the defendant knew it to be false, and (3) the
statement was material to a false claim.” United States ex
rel. Phalp v. Lincare Holdings, Inc., 857 F.3d 1148, 1154
(11th Cir. 2017).
“having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.” 31
U.S.C. § 3729(b)(4). “Under this version of the statute, a
relator is not required to allege presentment because the
requirement.” Patel, 2017 WL 4310263, at *8 (citing Hopper,
588 F.3d at 1328).
Defendants argue again that this claim must be dismissed
because it also fails to identify which of RS Compounding’s
employees committed the FCA violation and merely alleges a
contractual breach. (Doc. # 75 at 3-5; Doc. # 74 at 5).
Additionally, Gobea again argues that the United States has
failed to “plead facts sufficient to plausibly demonstrate 
Gobea’s active role in causing [FCA] violations” and fails to
cite any “facts to support . . . that  Gobea acted with the
necessary scienter.” (Doc. # 74 at 4).
Again, the Court disagrees with these arguments for the
reasons previously explained. The United States has stated a
claim under § 3729(a)(1)(B) with sufficient particularity as
to both RS Compounding and Gobea. The United States explains
in detail how RS Compounding used its Compounder software to
Customary Prices that would be reported to TRICARE. (Doc. #
Customary Price from the amount actually charged to cash
payors to the higher Average Wholesale Price in their records,
material to a false claim. The United States alleges these
false statements were material because TRICARE would not have
reimbursed RS Compounding at the higher Average Wholesale
Price, if it knew the Usual and Customary Price was actually
much lower. (Id. at ¶¶ 57, 64; Doc. # 85 at 6).
Furthermore, the United States alleges Defendants knew
their statements about their prices were false – an allegation
Customary price. (Doc. # 42 at ¶¶ 52, 92). The United States
further supports RS Compounding and Gobea’s knowledge by
alleging that RS Compounding changed its billing in February
2014 so that TRICARE was still billed at inflated prices, but
cash payors could no longer purchase the exact compounds
provided to TRICARE. (Id. at ¶¶ 49-50; Doc. # 85 at 11).
Essentially, the United States contends this new policy did
not reflect RS Compounding’s realization that it had violated
the law in the past; rather, the policy was an attempt by RS
Compounding to refine its pre-existing scheme to bilk the
government. Gobea knew of this change in policy, yet took no
steps to alter it or reimburse the United States for the
amounts that had been illegally charged in the past. (Doc. #
42 at ¶¶ 53, 82). These allegations satisfy Rule 9(b) and
this claim survives the motion to dismiss stage.
Third Claim for Avoiding an Obligation to Refund
In its third claim, the United States alleges that RS
Compounding and Gobea violated 31 U.S.C. § 3729(a)(1)(G).
According to the United States, RS Compounding and Gobea
“knowingly made, used, or caused to be made or used, false
records or statements — i.e., the false certifications made
or caused to be made by Defendants — material to an obligation
to pay or transmit money to the government.” (Doc. # 42 at ¶
95). Alternatively, they “knowingly concealed or knowingly
and improperly avoided or decreased an obligation to pay or
transmit money or property to the government.” (Id.). “As a
result, the United States has suffered damages in the form of
millions of dollars in unearned TRICARE payments made to
Defendants.” (Id. at ¶ 96).
Section 3729(a)(1)(G) creates liability for a person who
“knowingly makes, uses, or causes to be made or used, a false
record or statement material to an obligation to pay or
“knowingly conceals or knowingly and improperly avoids or
decreases an obligation to pay or transmit money or property
to the Government.” 31 U.S.C. § 3729(a)(1)(G). “This is known
as the ‘reverse false claim’ provision of the FCA because
liability results from avoiding the payment of money due to
the government, as opposed to submitting to the government a
false claim.” Matheny, 671 F.3d at 1222.
“Importantly, to establish a reverse false claim cause
of action, a relator must show that the defendant owed a
definite and clear ‘obligation to pay money to the United
States at the time of the allegedly false statements.’” United
States v. Space Coast Med. Assocs., L.L.P., 94 F. Supp. 3d
1250, 1263 (M.D. Fla. 2015)(quoting Matheny, 671 F.3d at
1223)). “Congress has defined a False Claims Act ‘obligation’
as ‘an established duty, whether or not fixed, arising from
licensor-licensee relationship, from a fee-based or similar
retention of any overpayment.’” Id. (quoting 31 U.S.C. §
tendency to influence, or be capable of influencing, the
dismissed because it “fails to allege the required ‘clear’
obligation to repay money to the TRICARE program.” (Doc. # 74
at 6; Doc. # 75 at 6). According to them, “the Government has
failed to cite to any contractual repayment provision which
obligation.” (Doc. # 74 at 6). Furthermore, they argue the
United States “fails to adequately allege facts showing RS
obligation” and their “violation of that obligation.” (Id. at
7; Doc. # 75 at 7).
These arguments are unavailing. The Court agrees with
3729(b)(3) need not be a contractual provision. (Doc. # 85 at
9 n.4). And the United States clearly identifies a noncontractual obligation owed by RS Compounding and Gobea: “the
‘concrete’ obligation to repay under § 3729(b)(3) and §
3729(a)(1)(G) was triggered when the defendants knew they had
received funds to which they were not entitled and retained
the funds instead of returning them.” (Id. at 9); see United
States v. Crumb, No. CV 15-0655-WS-N, 2016 WL 4480690, at *16
3729(a)(1)(G) for failure to allege a clear obligation where
the complaint “allege[d] that even in 2014, when they knew
the Government was conducting FCA investigations into alleged
false claims . . . defendants ‘failed to take any corrective
or repayment action.’”). “These allegations sufficiently set
forth an ‘obligation’ within the meaning of § 3729(b)(3),
specifically ‘an established duty . . . arising from . . .
the retention of any overpayment,’ so as to state a cause of
action for a reverse false claim under the post-FERA version
of the [FCA].” Crumb, 2016 WL 4480690, at *16; see also Kane
ex rel. United States v. Healthfirst, Inc., 120 F. Supp. 3d
370, 394 (S.D.N.Y. 2015)(“[T]he FCA as amended by the FERA
unequivocally provides that to retain — to not return — an
overpayment constitutes a violation of the FCA.”).
The United States also sufficiently alleges that RS
Compounding and Gobea were aware of the obligation to remit
overpayments. The United States focuses on RS Compounding’s
policy change in February 2014, of which Gobea was aware.
(Doc. # 85 at 11; Doc. # 42 at ¶¶ 47-53). RS Compounding was
notified that it was unlawful to charge TRICARE more than it
charged cash payors for the same compounds, which it had been
doing for years. (Doc. # 42 at ¶ 47). Yet, RS Compounding
only prospectively changed its practices — by no longer
TRICARE. (Id.). Despite knowing TRICARE had overpaid, neither
RS Compounding nor Gobea “made any attempt to refund the
difference between the price paid by cash payors and the
amount submitted for reimbursement to TRICARE.” (Id. at ¶
These allegations meet the particularity requirement of
Rule 9(b). Furthermore, the Court agrees with the United
3729(a)(1)(A) and (B) claims and is properly pled in the
alternative. (Doc. # 85 at 10). Therefore, this claim survives
the motion to dismiss stage.
Fourth Claim for Unjust Enrichment
In addition to the FCA claims, the United States asserts
a claim for unjust enrichment. The United States alleges that,
as a result of the alleged fraud, “Defendants were unjustly
enriched at the expense of the United States in an amount to
be determined which, under the circumstances, in equity and
good conscience should be returned to the United States.”
(Doc. # 42 at ¶ 99).
RS Compounding and Gobea argue the unjust enrichment
claim is subject to and fails to meet the Rule 9(b) pleading
requirement, based on the same arguments they previously
raised. (Doc. # 74 at 4; Doc. # 75 at 3). Indeed, some district
courts have held that where an unjust enrichment claim is
based on alleged fraud, the Rule 9(b) standard applies. See,
e.g., Allstate Indem. Co. v. Florida Rehab & Injury Centers
Longwood, Inc., No. 615CV1740ORL41GJK, 2016 WL 7177624, at *3
(M.D. Fla. July 26, 2016)(stating that the unjust enrichment
claim there sounded in fraud “and must, therefore, meet the
heightened pleading standards as set forth in Federal Rule of
Civil Procedure 9”); United States ex rel. Citizens United to
Reduce & Block Fed. Fraud, Inc. v. Metro. Med. Ctr., Inc.,
No. 89-0592-CIV, 1990 WL 10519617, at *3 (S.D. Fla. Jan. 11,
1990)(“[S]ince the unjust enrichment claim . . . rests on
fraudulent taking of money, in connection with the fraud
alleged in Counts I and II, it too must satisfy Rule 9(b).”).
“A claim for unjust enrichment has three elements: (1)
the plaintiff has conferred a benefit on the defendant; (2)
the defendant voluntarily accepted and retained that benefit;
inequitable for the defendants to retain it without paying
the value thereof.” Virgilio v. Ryland Grp., Inc., 680 F.3d
1329, 1337 (11th Cir. 2012)(citing Fla. Power Corp. v. City
of Winter Park, 887 So. 2d 1237, 1241 n. 4 (Fla. 2004)).
Here, just as the Court held for the FCA claims, the
9(b)’s particularity requirement as to both RS Compounding
and Gobea. The United States alleges RS Compounding, and its
sole shareholder Gobea, were paid high reimbursements by
TRICARE, which they voluntarily retained. (Doc. # 42 at ¶¶
66, 83-85, 99). Further, the United States argues it would be
inequitable for RS Compounding and Gobea to retain that money
— the “ill-gotten gains” — because they allegedly used false
statements to induce TRICARE into paying more money than
Defendants knew they were truly owed. (Id. at ¶¶ 3, 47, 99;
Doc. # 85 at 16). Therefore, the unjust enrichment claim
survives the motion to dismiss stage.
intervention sufficiently states claims for unjust enrichment
and violation of the FCA. Therefore, RS Compounding’s and
Gobea’s Motions are denied. RS Compounding’s and Gobea’s
answers are due December 15, 2017.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant Renier Gobea’s Motion to Dismiss the United
States’ Amended Complaint in Partial Intervention (Doc.
# 74) is DENIED.
Defendant RS Compounding LLC’s Motion to Dismiss the
United States’ Amended Complaint in Partial Intervention
(Doc. # 75) is DENIED.
Complaint in Partial Intervention are due December 15,
DONE and ORDERED in Chambers in Tampa, Florida, this 4th
day of December, 2017.
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