In a 47-page opinion, the 1st Circuit reinstated whistleblower claims against Johnson & Johnson subsidiary Ortho Biotech Products regarding alleged kickbacks and fraudulent marketing of the anemia drug Procrit.  The alleged fraud is estimated at $3-10 billion and potentially involves the largest damage claims in the history of the False Claims Act. The 1st Circuit’s decision adopts a “more flexible [pleading] standard” following a trend away from the strict pleading requirements some defendants have used to insinulate against false claims liability. According to the holding, a False Claims Act Complaint meets the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure “by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.”

The 1st Circuit Ortho Biotech Products Opinion
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