Nimish R. Desai

Lieff Cabraser Heimann & Bernstein LLP partner Nimish R. Desai specializes in False Claims Act, class action and environmental tort cases. He has represented whistleblower clients in the health care, military contracting, mortgage and securities industries. He obtained a $46 million false billing case settlement from one of California's largest hospital systems. He also worked with the U.S. Department of Justice to recover $37 million from a military contractor accused of selling defective equipment.

Experience has shown him that in whistleblower cases, "You start with the lengthy process of assuring the relator he's in good hands," Desai said. "There's a strong client counseling component at the outset."

That was true when a former sales manager for Allergan Inc., the maker of Botox, alleged the company failed to provide the federal Medicare and Medicaid programs the best price for the expensive product as required by federal law. Botox is known as a cosmetic product, but in fact draws most of its sales from medical uses. The government is Botox's biggest buyer, spending hundreds of millions of dollars on the drug each year.

The whistleblower, Terrence Barrett, alleged Allergan hides significant savings it affords cosmetics purchasers, leading government buyers to believe the market price is higher than it truly is, causing them to overpay and leading to substantial losses to the public. U.S. ex rel. Barrett v. Allergan Inc., 8:18-cv-00203 (C.D. Cal., filed Feb. 6, 2018).

"It wasn't easy for him to come forward," Desai said of Barrett. "He needed an income. We have given him a sense of what the process will be, and let him know that this is one of the first cases regarding so-called Average Sales Price issues to be litigated." The average whistleblower reward to a realtor under the False Claims Act is $1 million, according to published reports. The case is in the pleading stage; Desai filed his opposition to Allegan's motion to dismiss on July 2. A hearing before U.S. District Judge James V. Selna of Santa Ana is set for Aug. 12.

"Here's a company with dueling incentives," Desai said. "They need to keep prices low to stay competitive in the cosmetic market, and they need to keep prices high on the government side. It's an interesting dynamic."

In a major environmental case, Desai and his firm represent classes of property owners and commercial fishermen harmed by the 2015 oil spill in Santa Barbara. The plaintiffs allege that defendant Plains All American Pipeline LP did not follow basic safety protocols during installation of the line that leaked, failed to properly monitor and maintain the pipeline, ignored clear warning signs and failed to promptly respond to the spill following the rupture.

Desai successfully moved to certify subclasses of oil industry workers, businesses and coastal real property owners. The case is in the expert discovery stage and is headed toward trial in 2020. Andrews v. Plains All American Pipeline LP, 2:15-cv-04113 (C.D. Cal., filed June 1, 2015).

The chemical engineering degree Desai earned before law school comes in handy in many of his cases. "It's gratifying to be able to use some of that," he said.

--John Roemer