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State of New York; Commonwealth of Massachusetts; State of v. Amgen Inc.; Asd Healthcare; International Nephrology Network, Renamed

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Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges.

Relator Kassie Westmoreland and the plaintiff state intervenors in this qui tam action appeal from a Rule 12(b)(6) dismissal of their pendent state False Claims Act (FCA) causes of action against Amgen, Inc. (Amgen), International Nephrology Network (INN), and ASD Healthcare (ASD). The district court exercised jurisdiction over the action, which also alleged violations of the federal FCA, 31 U.S.C. § 3729 et seq., pursuant to 31 U.S.C. § 3732(b), 28 U.S.C. § 1331, and 28 U.S.C. § 1367. We have jurisdiction over this appeal concerning only questions of state law pursuant to 28 U.S.C. § 1291.

This appeal raises a set of questions similar to those that arose recently for this circuit in United States ex rel. Hutcheson v. Blackstone Medical, Inc., No. 10-1505, 2011 WL 2150191 (1st Cir. June 1, 2011). Like the plaintiffs in Hutcheson, the plaintiffs in this appeal allege that the defendants caused the submission of false or fraudulent claims for government payment. Also like the plaintiffs in Hutcheson, they allege that the claims were false or fraudulent because the claims misrepresented that healthcare professionals had not received certain kickbacks. The plaintiffs in Hutcheson alleged that the defendants in that suit caused the submission of false or fraudulent claims to the federal Medicare agency in violation of the federal FCA. By contrast, the plaintiffs here on appeal allege that the defendants caused the submission of false or fraudulent claims to state Medicaid agencies in violation of state FCAs.

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