The Impact of a Collaborative Practice, with Hall of Fame Member Sherrie Savett

 

Sherrie Savett is an attorney with serious gravitas. The litigator’s uniquely impressive practice has produced significant societal impacts alongside her many successes. Her list of accolades perfectly complements a track record that boasts huge results in an array of expansive, lengthy and high-stakes cases – proof positive that years of refining her practice has more than paid off.

As Executive Partner and Chair Emeritus at Berger Montague, Savett specializes in False Claims Act, Qui Tam and Whistleblower cases. Her practice is one of precision, persistence and perseverance. Savett has overseen the recovery of more than $3B for federal and state governments, as well as over $500M for whistleblower clients. Savett largely attributes her success to the team of people that she’s proud to lead.

“We are all in the same boat, rowing very hard, and it's a great relationship,” says Savett, who also serves as co-chair of Berger Montague’s Securities Fraud & Investor Protection practice. “I love working in a team. These cases are so hard and prolonged, you can lose hope sometimes – but you keep on fighting and often the tables turn in your direction, and lead to victory."

Savett knows about putting in the hard yards when it comes to complex litigation. In United States ex rel. Silver v. Omnicare, Inc., PharMerica Corp., et al, Savett and her team battled it out for 13 years, uphill, in a case involving unlawful kickbacks in the form of below cost pricing of drugs to nursing homes by major drug suppliers in order to obtain profitable government reimbursements. The government had declined the case and the opposition was unyielding, but Savett and her team were able to withstand the constant attacks and setbacks and gain ground. The case was settled two weeks before trial for $100M.

“Kickback cases are so important,” says Savett, a member of The Lawdragon Hall of Fame. “You're not allowed to influence a medical decision or a healthcare or federal business decision by using a bribe of any type.”

In March, Savett and her team, along with the law firm Reese Marketos, obtained one of the largest judgments in a False Claims Act case in U.S. history in the juggernaut whistleblower case U.S. et al. ex rel. Penelow v. Janssen Products, LP. Savett and her team at Berger Montague collaborated with Reese Marketos to secure a $1.64B judgment on behalf of two whistleblowers who were experienced drug sales representatives in the pharmaceutical industry. The case uncovered a company wide scheme that spanned almost a decade and that involved the unlawful marketing of two HIV medications for off-label uses.

Together the United States ex rel. Penelow v. Janssen Products, LP and United States ex rel. Silver v. Omnicare, Inc., PharMerica Corp., et al. cases earned Savett and her team recognition by The Anti-Fraud Coalition (TAF Coalition) as the 2024 Lawyers of the Year. The TAF Coalition is a public interest, non-profit organization dedicated to defending and empowering whistleblowers who expose fraud on the government and the financial markets.

In a prestigious recognition of her work, Savett was awarded the 2025 Judge Learned Hand Award by the American Jewish Committee of Philadelphia/Southern New Jersey. The award acknowledges Savett’s significant positive impact on the legal community, as well as the broader societal reach she has achieved throughout her distinctive and remarkable career.

Lawdragon: Tell me about your work for the City of Philadelphia under the Fair Housing Act.

Sherrie Savett: The case was against a major United States bank. The Fair Housing Act essentially says you may not discriminate against any group in connection with lending. So, the claim, based largely on statistical analysis, was that the bank was discriminating against Black people and Hispanics by giving more expensive and more onerous term loans to those minority groups – folks that had the same credit credentials as white homeowners. As a result of that discrimination, foreclosures in the minority groups were much greater than with whites who had the same credit credentials. These claims were heavily disputed by the other side. There were parallel cases brought by other cities around the country based on similar theories, but our case for the City of Philadelphia was the most successful of any of them.

The kickback was selling drugs below cost in exchange for obtaining the nursing homes’ more profitable federally insured business.

Judge Anita Brody, of the Eastern District of Pennsylvania, denied the defendant’s extensive motions to dismiss. We were able to mediate the case and reach a unique and valuable settlement. The $10M settlement was applied in three ways. The largest portion was grants to individuals in those minority populations in Philadelphia to be used for down payments on houses. Several thousand people were now able to buy houses as a result of this settlement. Other portions of the funds were used to renew and restore blighted areas caused by the foreclosures.

LD: That’s an incredible result.

SS: It was a very satisfying settlement because in the end, the bank itself was doing something very good for the community. Through the settlement, the City was getting the benefit of gaining more homeowners, and hopefully, good will was generated for that bank because it enabled many lower income families to buy homes.

LD: What can you tell us about Silver v. Omnicare, the False Claims Act case?

SS: It was a whistleblower case that lasted 13 years and settled two weeks before trial for $100M. It was a rather complex claim. It was a kickback in the world of nursing homes, and it was under the False Claims Act and the Anti-Kickback statute.

In the average nursing home, 10-15 percent of patients are covered by Medicare Part A, and most of the rest by Medicare Part D or Medicaid. The nursing homes are responsible for drug payments for the smaller group of Medicare Part A patients, and the government reimburses the cost of the drugs for the Medicare and Medicaid patients who constitute the bulk of the patients.

PharMerica and Omnicare, the drug suppliers, sold prescription drugs to the nursing homes at below cost for their Part A patients. They signed contracts that included the servicing of drugs for the entire nursing home, and thus they got the benefit of the profitable reimbursements from the government on the Medicare Part D and Medicaid claims for the great majority of patients in those homes. The kickback was selling drugs below cost in exchange for obtaining the nursing homes’ more profitable federally insured business.

There were round after round of motions to dismiss. One motion to dismiss was based on the public disclosure rule in the False Claims Act that says if the fraud has been revealed in a press release or in a government report in a public way, the case gets dismissed because the whistleblower hasn't really provided any benefit. In other words, the fraud was already known. The district judge dismissed the case on that basis, but we appealed to the 3rd Circuit, and we obtained a reversal. The 3rd Circuit said that the reports that the defendant relied on were too vague, did not identify any entity in particular, and the fraud was not revealed. So we were back in district court again.

The discovery in this case was extensive and hard fought. In order to prove our case, we needed to get the financial data relating to thousands of nursing homes – it was a massive project. We performed an intensive analysis of the costs and revenues related to each home. Our analysis of the massive data showed that for certain homes, selling the drugs below the defendants’ own cost to the nursing homes in order to obtain the federal business was still profitable since the government reimbursements for the Medicare Part D patients and the Medicaid patients yielded significant profits overall.

In the end, we settled the case, and it was a very successful outcome. Even though the government had initially declined, they did eventually take a serious interest in the case and filed helpful Statements of Interest toward the latter part of the case. But, essentially we had to litigate it all on our own for more than a decade. It was a tremendous battle with excellent defense lawyers, and we reached a settlement at the 11th hour.

LD: How did that settlement impact the industry?

SS: It changed the way the nursing homes and the suppliers of drugs interacted. We could clearly see it because the fraud we litigated started in around 2005 and ended in 2014. As a result of these cases, the drug suppliers had virtually stopped the below cost pricing (the kickbacks) by 2014. Kickback cases are so important because there is a strong public policy against allowing bribes of any kind to influence a medical decision, the choice of a healthcare provider, or who is selected to receive the profitable federal business.

LD: Can you tell us about the $337M Rite Aid settlement that you achieved?

SS: That was one of the greatest cases in my career. The case involved fraudulent financial statements. Management had very sophisticated accounting people in the leadership of the company, and they were manipulating the books. The goal was to report continuing profits quarter after quarter, year after year – because that's what the stock market loves. And they were falsely reporting. We believe they had two sets of books, one for internal purposes and one for external. Finally, the scheme wasn't working anymore because they had to take huge losses and develop huge reserves. Defendant Rite Aid finally began to reveal financial problems and the price of the stock plummeted – that's where our case started.

The goal was to report continuing profits quarter after quarter, year after year – because that's what the stock market loves. And they were falsely reporting. We believe they had two sets of books, one for internal purposes and one for external.

It was a heavy accounting case. We sued the accountant and got a significant portion of the settlement from the accountant, which is very hard to do. This was a reckless disregard case with regard to the accountants. We claimed that they didn't really do a proper audit and ignored the facts that were right in front of their eyes. The bulk of the settlement came from Rite Aid.

That settlement was one of the largest ever in the Eastern District of Pennsylvania at the time. I remember the opinion of the judge when he awarded our fee. Judge Dalzell said the case was of “Dickensian” complexity. It was almost poetic the way he wrote it, but he praised us greatly, and he said that the work we did was outstanding. The government took note of it and then criminally prosecuted some of the executives, based on our success and the evidence that we obtained in prosecuting the case.

LD: These cases really tell the story of the breadth of the work that you do. They're big wins that make a real impact on larger industries and on society.

SS: Can I tell you the biggest one of all?

LD: Please!

SS: It just happened and it is still unfolding. We had another False Claims Act case against Janssen for the unlawful off-label marketing of two HIV AIDS drugs. Any drug that's approved by the FDA gets a very detailed label. In this case, one of the side effects of one of the drugs was termed a severe adverse event in the label. If you already had a cholesterol problem, it raised your cholesterol. For HIV AIDS patients who often die of heart attacks, these side effects can be very dangerous. They were marketing that drug with messages that it was lipid neutral or lipid friendly. Our evidence showed that it raised cholesterol, it was not lipid friendly, and it was dangerous to patients. That's off label marketing. Janssen marketed those drugs unlawfully in contradiction to the label, and that drug was not medically necessary for patients who already had lipid issues. On the other drug, it was labeled for twice a day dosing, and Janssen marketed the drug for once-a-day dosing, because that's what doctors and patients prefer. We contended the defendant was using these false messages against the label to influence doctors to prescribe the drug.

We tried the case for almost six weeks last year, alongside our partner firm Reese Marketos, in the District Court of New Jersey, and we won a verdict of $150M. But the defendant, Janssen filed post-trial motions. There were hundreds of pages of briefs on the myriad of issues raised by Janssen. In a recent decision from the district judge, Judge Quraishi, almost all of the verdict was sustained. We won the bulk of the case, and under the False Claims Act, that is tripled automatically, so it was $360M. Then, the judge must apply statutory penalties, which for that time period were between $5,000 to $11,000 per claim. The jury had determined that there were approximately 160,000 claims. The court found $8,000 was a proper amount to assess for the statutory damages. When you multiply $8,000 times 160,000 – it’s about $1.2B. So, the judge affirmed and entered a judgment for $1.6B. We think it might be the largest judgment ever entered under the False Claims Act.

LD: That’s incredible. What is your takeaway from this case?

SS: Collaborating is so important. It was a gigantic complex trial and we all worked so well together. Our team had never tried a False Claims Act case like that so we decided that we should ally with a firm that had tremendous trial experience. Reese Marketos are outstanding trial lawyers. We built the case over 10 years and they tried it with our assistance, doing a masterful job. During a trial you have such a lot of work continuously: working with the witnesses, gathering the documents, preparing your questions, researching points of law and evidence, and drafting motions and responses to motions – we did all of that together. The main lesson is preparation and deep resources are critical. We had all of that and used it!

Be bold, take responsibility, believe in yourself, argue motions, take depositions. The more you do it, the better you get.

LD: How would you describe your leadership style?

SS: Very collaborative and very open. The team I work most closely with on these False Claims Act cases – which have occupied a great deal of my time in the last 10 years – is a pretty small team. It’s Michael Fantini, Joy Clairmont, William Ellerbe, Barbara Podell, Lane Vines, William Fedullo and me. They're all great lawyers. Many of them I've worked with for two or three decades. The younger lawyers particularly are very proficient in using and managing data to create charts and demonstratives that make the case much more visible. This is a great asset.

I have a very open leadership style. We have lots of conference calls and meetings where we discuss strategy and share responsibilities. I am usually the ultimate decision maker, but almost always it's a consensus decision. The decision making usually comes out best after a group discussion where the issues are dissected. When you're in a team and you're working with people that you like, it's pleasurable and you can handle a lot of stress much better under those conditions. The relationships I've formed through my legal career are lifelong and really very significant, both on a professional and personal level. I would never trade my career for another! It has been a great adventure, always stimulating and challenging.

LD: What advice do you have for young litigators?

SS: Be bold, take responsibility, believe in yourself, argue motions, take depositions. The more you do it, the better you get. At the beginning of my career when I tried to take depositions in these complex cases, I don't think I did very well. It's very hard to manage all the documents and ask the right questions. But as my career went along, that became one of my best skills. I love oral argument. I still do. I love settlement negotiations. I love the creativity that can come out of a rigorous mediation. And settling does not have to be viewed as weakness. A good settlement of a hard-fought case is enormously satisfying.