Litigation > False Claims Act/Qui Tam Defense > State FCA Resource Center > Upsher-Smith Labs., Inc. v. Abbott
12 Mar '13

Upsher-Smith Labs., Inc. v. Abbott, No. D-1-GN-12-000047 (345th Dist. Ct., Travis County, Tex., filed Jan. 9. 2012): On January 9, 2012, drug manufacturer Upsher-Smith filed an original petition against the Texas Attorney General seeking to modify or set aside a Civil Investigative Demand (“CID”) issued to it under the Texas Medicaid Fraud Prevention Act (TMFPA). The petition alleges that the CID must be modified to begin on September 1, 2005 because prior to that date, the TMFPA applied only to Medicaid recipients and providers, not to out-of-state drug manufacturers that do not seek reimbursement from the State—such as Upsher-Smith. The petition further alleges that the CID must be modified or set aside because it does not meet certain requirements under the TMFPA, including the requirements that a CID “state the rule or statute under which the alleged wrongful act is being investigated” and “the general subject matter of the investigation.” While the TMFPA states that a CID may be modified or set aside for “good cause” (Tex. Hum. Res. Code § 36.054(f)), courts have provided little or no guidance regarding the scope or limitations of CIDs. The Attorney General filed an answer and a counterclaim to enforce the CID on January 30, 2012, and, on February 1, 2012, the parties filed a Rule 11 agreement, pursuant to which the parties agreed to stay the action pending Upsher-Smith’s production of documents.