JACOBS

v.

VILLAGE HOME CARE, LLC

This lawsuit arises under the False Claims Act (“FCA”), which allows private persons, known as relators, to bring civil actions, known as qui tam suits, on the United States’ behalf for fraudulent claims. The Relators in this action—Kasey Jacobs and James Hanes—filed their complaint in June 2014, alleging claims against Village Home Care LLC (“VHC”), its owner Joy L. Rodak, and three referring physicians arising out of a scheme involving alleged kickbacks, upcoding and unnecessary home health services being billed to government healthcare programs (the “Jacobs” case). (Doc. 1).

More than six months later, in January 2015, a second case was filed in the Middle District of Florida against VHC.¹ This second case (5:21-cv-72-CEM-PRL) was filed by 3 relators—Katherine Brooks, Karen Swain, and Barbara Mellot-Yezman—and is

share of the settlement proceeds. The government is holding all relator share funds until this issue is resolved. Relators Jacobs and Hanes argue that as the first to file, they should be the sole recipients of the relator share from the government’s settlements with Defendants. They represent that they have reached a relator-sharing agreement with counsel for two of the relators in the Brooks action (Karen Swain and Barbara Mellot-Yezman). However, Ms. Brooks (the third relator), who is proceeding pro se, has refused to join the relator sharing agreement with the other two relators, but takes the position that she is nevertheless entitled to a share of the recovery.

In its recent response, the United States explained that: Commonly, when multiple qui tam actions have been filed and the United States reaches one or more settlements with defendants, the relators in the multiple cases will also reach agreement regarding entitlement to the relator share. When such agreement cannot be reached, however, the Court must apply the FCA’s first-to-file provision to determine which relator is entitled to the relator share. Only after this determination has been made can the United States negotiate the share percentage and pay a relator share. (Doc. 104).

Pursuant to the FCA’s first-to-file rule, “[w]hen a person brings an action .. . no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5).

This means that “once one suit has been filed by a relator or by the government, all other suits against the same defendant based on the same kind of conduct would be barred.” United States ex rel., et al. v. H.ILG. Capital, LLC, et al., No. 8:17-cv-983-T-33AEP, 2020 WL 5076712, *5 (M.D. Fla. August 26, 2020) (quoting Cooper v. Blue Cross & Blue Shield of Fla., Inc., 19 F. 3d 562, 567 (11™ Cir. 1994)).

Because the Jacobs case was filed first, the Court must determine whether the Brooks case is sufficiently related to trigger the FCA’s first-to-file bar. If it is triggered, then the Jacobs relators solely will be entitled to the relator share from the United States’ settlements with Defendants. In an abundance of caution, the Court will afford the Relators in the Brooks case an opportunity, by October 6, 2023, to file a response to the instant motion. The Clerk is directed to send this Order, as well as copies of the instant motion (Doc. 102) and the United States’ response (Doc. 104) to the Brooks Relators (see addresses listed below).

ORDERED in Ocala, Florida on September 22, 2023.

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PHILIP R. LAMMENS

United States Magistrate Judge Copies furnished to: Katherine Brooks 1868 W Quaker Lane Citrus Springs, FL 34434 Michael C. Addison, Esq. 1304 Alicia Ave. Tampa, FL 33604 [email protected]