This week marks the four-year anniversary of the Supreme Court’s landmark False Claims Act decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016).  In Escobar, the Supreme Court confirmed that the question of government knowledge lies at the heart of FCA liability determinations, but it did not specifically address who counts as “the Government” for purposes of this inquiry.  Since Escobar, however, a number of circuits have confirmed that the relevant scope of “government knowledge” includes both the payor agency and other agencies with regulatory oversight and enforcement responsibilities, a recognition that has far-reaching consequences for FCA litigation.  To learn more about this emerging trend in the case law and its potentially powerful implications for FCA matters, click here.

Tags: Escobar, False Claims Act, government knowledge, Materiality
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Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

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Photo of Dan Grant Dan Grant

Dan Grant has experience representing companies and individuals in federal and state criminal and civil investigations by the U.S. Department of Justice, the Securities and Exchange Commission, and other enforcement agencies. Dan’s complimentary litigation practice focuses on defending companies in government-facing litigation, including cases…

Dan Grant has experience representing companies and individuals in federal and state criminal and civil investigations by the U.S. Department of Justice, the Securities and Exchange Commission, and other enforcement agencies. Dan’s complimentary litigation practice focuses on defending companies in government-facing litigation, including cases arising under the False Claims Act.

Prior to joining the firm, Dan served as a political appointee at the U.S. Department of Homeland Security (DHS), where he worked in the Office of the Secretary and the Office of the General Counsel. While at DHS, Dan collaborated with senior leadership on management issues and served as a liaison between the Secretary and component offices throughout the department to coordinate messaging, drafting of reports, and responses to incidents. He has also worked for federal, state, and local political candidates in Illinois, Massachusetts, and New Hampshire.

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