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November 21, 2016

In a recent decision in U.S. ex rel Feaster v. Dopps Chiropractic Clinic, LLC, the District of Kansas addressed plaintiff’s motion to strike a number of boilerplate affirmative defenses. Feaster involves both qui tam and retaliation claims under False Claims Act, as well as other employment claims.

Obviously, False Claims Act litigation is not immune from defendants’ typical abundance-of-caution practice of asserting the standard list of everything-and-the-kitchen-sink affirmative defenses, regardless of their specific applicability to the case. In this case, the relator/plaintiff filed a motion to strike a number of these defenses.

The court granted the motion as to some of the defenses and denied it as to others. For example, the court struck two defenses asserting that the complaint failed to assert valid claims because the court had already ruled upon and denied motions to dismiss on the same grounds.

The court also struck the defense asserting the relator lacked standing to bring the qui tam claims, noting that the US Supreme Court and Tenth Circuit have rejected that argument.

On the defenses to the retaliation claim, the court required the defendant to plead its statute of limitations defense with supporting facts. However, the court denied the motion with respect to several other defenses, including mitigation of damages.

This decision in Feaster builds on a long line of precedent that teaches the importance of carefully evaluating the affirmative defenses asserted in False Claims Act litigation. Although defendants must assert all possible defenses, relators and plaintiffs should carefully evaluate the applicability of such defenses and bring an appropriate motion to strike those that are inapposite.