Exhibit 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into between: (i)
the United States of America, acting by and through the United States Department
of Justice and on behalf of the Office of Inspector General of the Department of
Health and Human Services ("OIG-HHS"); (ii) Polymedica Corporation
("Polymedica"), and its wholly-owned subsidiaries Liberty Medical Supply, Inc.
and Liberty Home Pharmacy Corporation (collectively "Defendants"), through their
authorized representatives; (iii) ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇ ("Relator Ben-Barrack") and
(iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Relator ▇▇▇▇▇▇▇") and her estate, heirs, and assigns,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for herself and as Administratrix of the Estate of ▇▇▇▇▇▇
▇▇▇▇▇▇▇. Collectively, all of the above shall be referred to as "the Parties."
I. PREAMBLE
As a preamble to this Agreement, the Parties agree to the following:
1. Defendants aver that they are or have been national providers of, among
other things, durable medical equipment, pharmaceuticals, and related
products, and currently provide or have provided in all fifty states in the
United States, and Puerto Rico.
2. Defendants submitted or caused to be submitted claims for payment to the
Medicare Program ("Medicare" or "Program"), Title XVIII of the Social
Security Act, 42 U.S.C.ss.ss.1395-1395ggg.
3. On July 25, 2001, pursuant to the qui tam provisions of the False Claims
Act, 31 U.S.C.ss.3730, Relator Ben-Barrack, in her individual capacity and
as a relator on behalf of the United States, filed a complaint, under seal,
in United States ex rel. ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇
POLYMEDICA SETTLEMENT AGREEMENT
v. Polymedica Corporation and Liberty Medical Supply, Inc., Civil Action
No. 01-8705, in the United States District Court for the Southern District
of Florida (qui tam A). On August 7, 2001, pursuant to the qui tam
provisions of the False Claims Act, 31 U.S.C.ss.3730, Relator ▇▇▇▇▇▇▇, in
her individual capacity and as a relator on behalf of the United States,
filed a complaint, under seal, in United States ex rel. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ v.
Liberty Home Pharmacy Corporation and Polymedica Company, Civil Action No.
01-11370, in the United States District Court for the District of
Massachusetts (qui tam B); subsequently Relator ▇▇▇▇▇▇▇ passed away, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for herself and as Administratrix of the Estate of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ was substituted for Relator ▇▇▇▇▇▇▇ in this suit. Together,
Relator Ben-Barrack, Relator ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for herself
and as Administratrix of the Estate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, shall hereinafter be
referred to as Relators.
4. The United States contends that it has certain civil claims, as specified
in paragraph 13 below, against Defendants for engaging in the following
conduct:
a. Between October 1, 1998 through June 30, 2002: Defendants submitted or
caused to be submitted claims for reimbursement to Medicare for the
diabetic and nebulizer products with Healthcare Common Procedure Codes
descriptions Blood glucose/reagent strips (A4253), Lancets per box
(A4259), Lancet device each (A4258), Calibrator solution/chips
(A4256), Albuterol unit dose (J7619, K0505), Ipratropium bromide unit
dose (J7644, K0518), Nebulizer with compression (E0570),
POLYMEDICA SETTLEMENT AGREEMENT 2
Dispensing fee dme nebulizer set (E0590), Nondisposable nebulizer set
(A7005), Nebulizer administration set (A7003), and Aerosol mask used
with nebulizer (A7015), Sterile saline/water (J7051), albuterol
solution concentrated (J7618), Bitolterol mesylate concentrated
(J7628), Cromolyn sodium unit dose (J7631), Metaproterenol unit dose
(J7669), Inhalation solution for DME (J7699), Acetylcysteine unit dose
(J7608), Budesonide inhalation solution (J7626), Triamcinolene unit
dose (J7684), Dexamethasone unit dose (J7638), Atropine concentrated
(J7636), Acetylcysteine unit dose (K0503), Albuterol concentrate
(K0504), Atropine unit dose (K0507), Bitolterol concentrated (K0508),
Cromolyn sodium unit dose (K0511), Metaproterenol unit dose (K0524),
Disposable nebulizer set (K0168), Aerosol mask with nebulizer (K0180),
Tracheotomy mask or collar (A4621), Non-disposable nebulizer set
(K0170), non-covered item or service (A9270), Nasal vaccine inhalation
(J3535), Nasal vaccine inhalation (J3530), Metaproterenal sulfate
(J7670), and Dexamethasone concentrated (J7637), without fully
complying with the following Medicare coverage and documentation
requirements, as prescribed and defined by the Centers for Medicare
and Medicaid Services and the applicable Durable Medical Equipment
Regional Carriers: (1) a signed, written doctor's order must be
obtained by the supplier prior to submitting a claim to Medicare for
any diabetes or nebulizer related product, where such an order is
described and defined by the local medical review policy for diabetic
related and nebulizer related products, and by the
POLYMEDICA SETTLEMENT AGREEMENT 3
applicable DMERC Supplier Manual; (2) documentation of the medical
necessity of testing or treatment in excess of the utilization
guidelines, where applicable, must be obtained by the supplier prior
to submitting a claim to Medicare for any diabetes or nebulizer
related product; (3) before dispensing any diabetic or nebulizer
related products to a Medicare beneficiary, the supplier must have
either an oral or written dispensing order from the treating
physician, as described and defined by the applicable DMERC Supplier
Manual; (4) the supplier must have and maintain proof of the delivery
of the product to the Medicare beneficiary; (5) the supplier or
physician must maintain documentation of actual use of certain
products when prescribed and dispensed in excess of utilization
guidelines where required by local medical review policy, and by the
applicable DMERC Supplier Manual; and (6) the supplier must be in
possession of a valid assignment of benefits form, as defined by the
beneficiary authorization section of the applicable DMERC Supplier
Manual; and
b. Between August 1, 1997 through June 30, 2003: Defendants submitted or
caused to be submitted claims for reimbursement to Medicare for
quantities of diabetic and nebulizer products with Healthcare Common
Procedure Codes descriptions: Blood glucose/reagent strips (A4253),
Lancets per box (A4259), Albuterol unit dose (J7619, K0505),
Ipratropium bromide unit dose (J7644, K0518), Nondisposable nebulizer
set (A7005), Nebulizer administration set (A7003), and Aerosol mask
used with nebulizer (A7015), Sterile saline/water (J7051), albuterol
POLYMEDICA SETTLEMENT AGREEMENT 4
solution concentrated (J7618), Bitolterol mesylate concentrated
(J7628), Cromolyn sodium unit dose (J7631), Metaproterenol unit dose
(J7669), Inhalation solution for DME (J7699), Acetylcysteine unit dose
(J7608), Budesonide inhalation solution (J7626), Triamcinolene unit
dose (J7684), Dexamethasone unit dose (J7638), Atropine concentrated
(J7636), Acetylcysteine unit dose (K0503), Albuterol concentrate
(K0504), Atropine unit dose (K0507), Bitolterol concentrated (K0508),
Cromolyn sodium unit dose (K0511), Metaproterenol unit dose (K0524),
Disposable nebulizer set (K0168), Aerosol mask with nebulizer (K0180),
Tracheotomy mask or collar (A4621), Non-disposable nebulizer set
(K0170), non-covered item or service (A9270), Nasal vaccine inhalation
(J3535), Nasal vaccine inhalation (J3530), Metaproterenal sulfate
(J7670), and Dexamethasone concentrated (J7637), which quantities were
in excess of the quantities specified in the written doctor's order
(for the date of service of the claim) that was in Defendants'
possession on or prior to the date of submission of the claim to
Medicare.
The conduct specified above in this paragraph is hereinafter referred to as the
"Covered Conduct."
5. The United States also contends that it has certain administrative claims
against Defendants for engaging in the Covered Conduct.
6. Defendants deny the allegations and contentions in paragraphs 4 and 5
above, and further deny any and all wrongdoing and/or liability under the
False Claims Act, 31 U.S.C. ▇▇.▇▇.
POLYMEDICA SETTLEMENT AGREEMENT 5
3729-3733, or other federal or state law or regulation with respect to the
Covered Conduct.
7. This Agreement is neither an admission of any wrongful conduct or liability
by Defendants, nor a concession by the United States that its claims are
not well founded.
8. The Relators claim entitlement under 31 U.S.C.ss.3730(d) to a share of the
proceeds of this Agreement, but the Relators and the United States have not
agreed on the entitlement or amount of that award, if any.
9. In order to avoid the disruption, delay, uncertainty, inconvenience, and
expense of protracted litigation of these claims, the Parties have agreed
to a full and final settlement as set forth below.
II. TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
obligations set forth below, and for good and valuable consideration as stated
herein, the Parties agree as follows:
10. Payment to the United States: Defendants agree to pay $35 million dollars
(the "Settlement Amount") to the United States pursuant to the Manner and
Method of Payment defined below in paragraph 11.
11. Manner and Method of Payment: Polymedica shall effect the payment provided
for in paragraph 10 above by electronic transfer pursuant to written
routing instructions provided by the United States. This payment shall
occur within 5 business days after the Effective Date of this Agreement.
POLYMEDICA SETTLEMENT AGREEMENT 6
12. Integrity Agreement: Simultaneously herewith, Defendants are entering into
a Corporate Integrity Agreement ("CIA") with OIG-HHS, attached as Exhibit A
which is incorporated into this Agreement by reference. Defendants shall
immediately, upon execution of the CIA, implement their obligations under
the CIA.
13. In consideration of the obligations of Defendants under this Agreement and
subject to the exceptions in paragraph 15 below, and conditioned upon
payment in full of the Settlement Amount, the United States shall release
and forever discharge Defendants from any civil or administrative monetary
claims that the United States has or may have for the Covered Conduct under
the False Claims Act, 31 U.S.C.ss.ss.3729-3733; the Civil Monetary
Penalties Law, 42 U.S.C.ss.1320a-7a; the Program Fraud Civil Remedies Act,
31 U.S.C.ss.ss.3801-3812; any other statute creating causes of action for
civil damages or civil penalties that the Civil Division has actual or
present authority to assert and compromise pursuant to 28 C.F.R. Part O,
Subpart I,ss.0.45(d); or the common law theories of unjust enrichment,
payment by mistake, and fraud. No individuals are released by this
Agreement, except that in consideration of the obligations of Defendants
under this Agreement and subject to the exceptions in paragraph 15 below,
and conditioned upon payment in full of the Settlement Amount, the United
States shall release and forever discharge current directors, officers, and
employees of the Defendants who were not employed by or otherwise in any
way affiliated with Defendants at any time prior to June 30, 2003, from any
civil or administrative monetary claims that the United States has or may
have for the Covered Conduct under the False Claims Act, 31 U.S.C.
POLYMEDICA SETTLEMENT AGREEMENT 7
▇▇.▇▇. 3729-3733; the Civil Monetary Penalties Law, 42 U.S.C.ss.1320a-7a;
the Program Fraud Civil Remedies Act, 31 ▇.▇.▇.▇▇.▇▇. 3801-3812; or the
common law theories of unjust enrichment, payment by mistake, and fraud.
14. In consideration of the obligations of Defendants set forth in this
Agreement and the CIA incorporated by reference, and conditioned upon
Defendants' payment in full of the Settlement Amount, OIG-HHS agrees to
release and refrain from instituting, directing, or maintaining any
administrative action seeking exclusion from the Medicare, Medicaid, or
other Federal health care programs (as defined in 42 U.S.C.ss.1320a-7b(f))
against Defendants under 42 ▇.▇.▇.▇▇. 1320a-7a (Civil Monetary Penalties
Law) or 42 U.S.C.ss.1320a-7(b)(7) (permissive exclusion for fraud,
kickbacks, and other prohibited activities), for the Covered Conduct,
except as reserved in paragraph 15 below, and as reserved in this
paragraph. The OIG-HHS expressly reserves all rights to comply with any
statutory obligations to exclude Defendants from the Medicare, Medicaid, or
other Federal health care program under 42 U.S.C.ss.1320a-7(a) (mandatory
exclusion) based upon the Covered Conduct. Nothing in this paragraph
precludes the OIG-HHS from taking action against entities or persons, or
for conduct and practices, for which claims have been reserved in paragraph
15, below.
15. Notwithstanding any term of this Agreement, specifically reserved and
excluded from the scope and terms of this Agreement as to any entity or
person (including Defendants and Relator(s)) are the following claims of
the United States:
a. Any civil, criminal, or administrative liability arising under Title
26, U.S. Code
POLYMEDICA SETTLEMENT AGREEMENT 8
(Internal Revenue Code);
b. Any criminal liability;
c. Except as explicitly stated in this Agreement, any administrative
liability, including mandatory exclusion from Federal health care
programs;
d. Any liability to the United States (or its agencies) for any conduct
other than the Covered Conduct;
e. Any liability based upon such obligations as are created by this
Agreement;
f. Any liability of individuals, including officers and employees, except
as explicitly described in paragraph 13 above.
g. Any civil or administrative liability of individuals (including
current and former directors, officers, employees, agents, or
shareholders of Defendants) who receive written notification that they
are the target of a criminal investigation (as defined in the United
States' Attorneys' Manual), are indicted, charged, convicted, or who
enter into a plea agreement related to the Covered Conduct.
h. Any liability for express or implied warranty claims or other claims
for defective or deficient products or services, including quality of
goods and services; and
i. Any liability for personal injury or property damage or for other
consequential damages arising from the Covered Conduct. j. Any
liability for failure to deliver goods or services due.
16. The Relators and their heirs, successors, attorneys, agents, and assigns
agree not to object to this Agreement and agree and confirm that this
Agreement is fair, adequate, and
POLYMEDICA SETTLEMENT AGREEMENT 9
reasonable under all the circumstances, pursuant to 31 ▇.▇.▇.▇▇.
3730(c)(2)(B). In connection with this Agreement and qui tams A and B,
Relators and their heirs, successors, attorneys, agents, and assigns agree
that neither this Agreement, any intervention by the United States in qui
tams A and B in order to dismiss qui tams A and B, nor any dismissal of
these qui tams, will waive or otherwise affect the ability of the United
States to contend that provisions in the False Claims Act, including 31
U.S.C.ss.ss.3730(d)(3) and 3730(e), bar the relator from sharing in the
proceeds of this Agreement. Moreover, the United States and Relators and
their heirs, successors, attorneys, agents, and assigns agree that they
each retain all of their rights pursuant to the False Claims Act on the
issue of the percentage, if any, that the Relators should receive of any
proceeds of this settlement, and that no agreement between the United
States and Relators with regard to this percentage has been reached to
date.
17. Subject to the exceptions in paragraph 15, in consideration of the
obligations of Defendants in this Agreement, conditioned upon Defendants'
full payment of the Settlement Amount, Relators, for themselves and for
their heirs, successors, attorneys, agents, and assigns, agree to release
Defendants from any civil monetary claim the United States has or may have
for the Covered Conduct under the False Claims Act, 31 U.S.C. ▇▇.▇▇.
3729-3733.
18. Nothing in this Agreement shall constitute a waiver, or otherwise affect,
any rights arising from Relator Ben-Barrack's claims under 31
U.S.C.ss.3730(h) as contained in Relator Ben-Barrack's qui ▇▇▇ ▇.
POLYMEDICA SETTLEMENT AGREEMENT 10
19. Defendants fully and finally release the United States, its agencies,
employees, servants, and agents from any claims (including attorneys fees,
costs, and expenses of every kind and however denominated) which Defendants
have asserted, could have asserted, or may assert in the future against the
United States, its agencies, employees, servants, and agents, related to
the Covered Conduct and the United States' audits and investigations of
Defendants.
20. Defendants waive and shall not assert any defenses Defendants may have to
any criminal prosecution or administrative action relating to the Covered
Conduct that may be based in whole or in part on a contention that, under
the Double Jeopardy Clause in the Fifth Amendment of the Constitution, or
under the Excessive Fines Clause in the Eighth Amendment of the
Constitution, this Agreement bars a remedy sought in such criminal
prosecution or administrative action. The Parties agree that this Agreement
is not punitive in purpose or effect. Nothing in this paragraph or any
other provision of this Agreement constitutes an agreement by the United
States concerning the characterization of the Settlement Amount for
purposes of the Internal Revenue laws, Title 26 of the United States Code.
21. The Settlement Amount shall not be decreased as a result of the denial of
claims for payment now being withheld from payment to Defendants by any
Medicare carrier or intermediary, or any State payer, related to the
Covered Conduct; and Defendants agree not to resubmit to any Medicare
carrier or intermediary, or any State payer any previously denied claims
related to the Covered Conduct, and agrees not to appeal any such denials
POLYMEDICA SETTLEMENT AGREEMENT 11
of claims.
22. Defendants agree to the following:
1. Unallowable Costs Defined: that all costs (as defined in the Federal
Acquisition Regulation, 48 C.F.R. ss. 31.205-47 and in Titles XVIII
and XIX of the Social Security Act, 42 U.S.C. ▇▇.▇▇. 1395-1395ggg and
1396-1396v, and the regulations and official program directives
promulgated thereunder) incurred by or on behalf of Defendants, their
present or former officers, directors, employees, shareholders, and
agents in connection with the following shall be "unallowable costs"
on government contracts and under the Medicare Program, Medicaid
Program, TRICARE Program, and Federal Employees Health Benefits
Program (FEHBP):
(1) the matters covered by this Agreement;
(2) the United States' audits and civil and criminal investigations
of the matters covered by this Agreement;
(3) Defendants' investigation, defense, and corrective actions
undertaken in response to the United States' audits and civil and
criminal investigations in connection with the matters covered by
this Agreement (including attorney's fees); (4) the negotiation
and performance of this Agreement;
(5) the payment Defendants make pursuant to this Agreement and any
payments that Defendants make to Relator(s), including expenses,
costs, and attorney fees; and
(6) the negotiation of, and obligations undertaken pursuant to the
CIA to:
(i) Retain an independent review organization to perform annual
reviews
POLYMEDICA SETTLEMENT AGREEMENT 12
as described in Section III of the CIA; and
(ii) prepare and submit reports to the OIG-HHS.
However, nothing in this paragraph 22.a.(6) that may apply to the
obligations undertaken pursuant to the CIA affects the status of
costs that are not allowable based on any other authority
applicable to Defendants. (All costs described or set forth in
this paragraph 22.a. are hereafter, "unallowable costs").
b. Future Treatment of Unallowable Costs: These unallowable costs
shall be separately determined and accounted for by Defendants,
and Defendants shall not charge such unallowable costs directly
or indirectly to any contracts with the United States or any
state Medicaid program, or seek payment for such unallowable
costs through any cost report, cost statement, information
statement, or payment request submitted by Defendants or any of
their subsidiaries or affiliates to the Medicare, Medicaid,
TRICARE, or FEHBP Programs.
c. Treatment of Unallowable Costs Previously Submitted for Payment:
Defendants further agree that within 90 days of the Effective
Date of this Agreement they shall identify to applicable Medicare
and TRICARE fiscal intermediaries, carriers, and/or contractors,
and Medicaid, VA and FEHBP fiscal agents, any unallowable costs
(as defined in this paragraph) included in payments previously
sought from the United States, or any state Medicaid program,
including, but not limited to, payments sought in any cost
reports, cost statements, information reports, or payment
requests already submitted by Defendants or any of their
subsidiaries or
POLYMEDICA SETTLEMENT AGREEMENT 13
affiliates, and shall request, and agree, that such cost reports,
cost statements, information reports, or payment requests, even
if already settled, be adjusted to account for the effect of the
inclusion of the unallowable costs. Defendants agree that the
United States, at a minimum, shall be entitled to recoup from
Defendants any overpayment plus applicable interest and penalties
as a result of the inclusion of such unallowable costs on
previously-submitted cost reports, information reports, cost
statements, or requests for payment.
Any payments due after the adjustments have been made shall
be paid to the United States pursuant to the direction of
the Department of Justice, and/or the affected agencies. The
United States reserves its rights to disagree with any
calculations submitted by Defendants or any of their
subsidiaries or affiliates on the effect of inclusion of
unallowable costs (as defined in this paragraph) on
Defendants or any of their subsidiaries or affiliates' cost
reports, cost statements, or information reports.
d. Nothing in this Agreement shall constitute a waiver of the rights of the
United States to audit, examine, or re-examine Defendants' books and
records to determine that no unallowable costs have been claimed in
accordance with the provisions of this paragraph.
POLYMEDICA SETTLEMENT AGREEMENT 14
23. Defendants agree to cooperate fully and truthfully with the United States'
investigation of individuals and entities not released in this Agreement.
Upon reasonable notice, Defendants shall encourage, and agree not to
impair, the cooperation of their directors, officers, and employees, and
shall use their best efforts to make available, and encourage the
cooperation of former directors, officers, and employees for interviews and
testimony, consistent with the rights and privileges of such individuals.
Defendants agree to disclose fully to the United States the non-privileged
findings of any internal audit or review related to the Covered Conduct,
and to furnish to the United States upon reasonable request all
non-privileged materials, documents and records in their possession,
custody, or control relating to the Covered Conduct. Defendants shall not
be required to disclose attorney-client privileged materials, documents, or
records or attorney-work product.
24. This Agreement is intended to be for the benefit of the Parties only, and
by this instrument the Parties do not release any claims against any other
person or entity, except to the extent provided for in paragraph 25, below.
25. Defendants agree that they shall waive and shall not seek payment for any
of the health care ▇▇▇▇▇▇▇▇ covered by this Agreement from any health care
beneficiaries, their parents, sponsors, legally responsible individuals, or
third party payors. Defendants waive any cause of action against these
beneficiaries or their parents or sponsors based upon the claims for
payment covered by this Agreement.
26. Upon receipt of the Settlement Amount, the United States shall file a
Notice of Intervention and Motion to Dismiss in qui tams A and B pursuant
to the terms of the
POLYMEDICA SETTLEMENT AGREEMENT 15
Agreement. Except as expressly stated below and subject to paragraph 16,
this Motion to Dismiss shall seek dismissal (1) with prejudice to Relators
with respect to all claims against Defendants by Relator(s); and (2) with
prejudice to the United States with respect to claims against Defendants
for the Covered Conduct, but without prejudice to the United States as to
any other allegation in qui tams A and B; but in no event shall (1) the
dismissal of qui tam A dismiss or otherwise prejudice Relator Ben-Barrack's
claims under 31 U.S.C.ss.3730(h) as contained in Relator Ben-Barrack's qui
tam A; (2) the dismissal of qui tam A or qui tam B dismiss or otherwise
prejudice Relators' claims against defendants for necessary expenses and
reasonable attorney fees and costs pursuant to 31 U.S.C.ss.3739(d)(1); and
(3) the dismissal of qui tam A or qui tam B dismiss or otherwise prejudice
the United States' or Relators' rights with regard to Relators' share of
the Settlement Amount pursuant to 31 U.S.C.ss.3730(d).
27. Except as provided in paragraph 26 above and paragraph 30 below, each Party
shall bear its own legal and other costs incurred in connection with this
matter, including the preparation and performance of this Agreement.
28. Defendants and Relators represent that this Agreement is freely and
voluntarily entered into without any degree of duress or compulsion
whatsoever.
29. This Agreement is governed by the laws of the United States. The Parties
agree that the exclusive jurisdiction and venue for any dispute arising
between and among the Parties under this Agreement shall be the United
States District Court for the Southern District of Florida, except that
disputes arising under the CIA shall be resolved exclusively under the
dispute resolution provisions in the CIA.
POLYMEDICA SETTLEMENT AGREEMENT 16
30. This Agreement and the CIA incorporated by reference constitute the
complete agreement between the Parties. This Agreement may not be amended
except by written consent of the Parties, except that: (1) only Defendants
and OIG-HHS must agree in writing to modification of the CIA; (2) a
separate agreement between Relators and Defendants shall address attorney
expenses, fees, and costs, if any, to which Relators are entitled pursuant
to 31 U.S.C.ss.3730(d), and if no such agreement between Defendants and
Relator(s) is reached, the amount of such attorneys expenses, fees and
costs, if any, shall be determined by the Court; (3) a separate agreement
between Relator Ben-Barrack and Defendants shall address Relator
Ben-Barrack's claims under 31 U.S.C.ss.3730(h) as stated in qui tam A, and
if no such agreement between Defendants and Relator Ben-Barrack is reached,
those claims shall be addressed at Relator Ben-Barrack's discretion to the
Court; and (4) a separate agreement between Relators and the United States
shall address Relators' claims to a share of the Settlement Amount pursuant
to 31 U.S.C.ss.3730(d), and if no such agreement between Relators and the
United States is reached, those claims shall be determined by the Court.
31. This Agreement is binding on Defendants' and Relators' successors,
transferees, heirs, and assigns.
32. The undersigned individuals signing this Agreement on behalf of Defendants
and Relators represent and warrant that they are authorized to execute this
Agreement. The undersigned United States signatories represent that they
are signing this Agreement in
POLYMEDICA SETTLEMENT AGREEMENT 17
their official capacities and that they are authorized to execute this
Agreement.
33. This Agreement may be executed in counterparts, each of which constitutes
an original and all of which constitute one and the same agreement.
34. The Parties agree that they shall execute and deliver all such other
documents and instruments as may be necessary and appropriate to effectuate
the terms of the Agreement.
35. This Agreement is binding on Defendants' and Relators' successors,
transferees, heirs, and assigns.
36. This Agreement is effective on the date of signature of the last signatory
to the Agreement (the "Effective Date of this Agreement"). Facsimiles of
signatures shall constitute acceptable, binding signatures for purposes of
this Agreement.
37. All Parties consent to the United States' disclosure of this Agreement and
information about this Agreement, to the public.
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Assistant Attorney General
United States Department of Justice
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Commercial Litigation Branch
Civil Division
United States Department of ▇▇▇▇▇▇▇
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United States Attorney for the
Southern District of Florida
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DATE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant U.S. Attorney
Southern District of Florida
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United States Attorney
District of Massachusetts
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Assistant United States Attorney
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POLYMEDICA SETTLEMENT AGREEMENT 19
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Chief Counsel to the Inspector General
Office of Inspector General
United States Department of Health and
Human Services
DEFENDANTS
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▇▇. Vice President and General Counsel
On Behalf of Polymedica Corporation,
Liberty Medical Supply, Inc., and
Liberty Home Pharmacy Corp.
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▇▇▇▇▇▇▇▇▇ Traurig, PA
Attorney for Polymedica Corporation
RELATORS
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Attorney for ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇
POLYMEDICA SETTLEMENT AGREEMENT 20
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Administratrix of the Estate of ▇▇▇▇▇▇
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Attorney for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Estate
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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POLYMEDICA SETTLEMENT AGREEMENT 21
