As the recent SolarWinds Orion attack makes clear, cybersecurity will be a focus in the coming years for both governmental and non-governmental entities alike. In the federal contracting community, it has long been predicted that the government’s increased cybersecurity requirements will eventually lead to a corresponding increase in False Claims Act (FCA) litigation involving cybersecurity … Continue Reading
Under the False Claims Act’s (“FCA”) first-to-file bar, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” But can a relator amend her complaint to add, remove, or substitute relators without violating the first-to-file bar? Recently, the Third Circuit in In re Plavix … Continue Reading
On February 27 and 28, 2020, Joseph H. (Jody) Hunt, Assistant Attorney General for DOJ’s Civil Division, and Michael Granston, Deputy Assistant Attorney General, Commercial Litigation Branch, spoke about False Claims Act (“FCA”) enforcement at the Federal Bar Association’s annual Qui Tam Conference in Washington, D.C. They highlighted FCA enforcement priorities for 2020, and offered … Continue Reading
As previously discussed on this blog, the Supreme Court announced last year that it would resolve a circuit split over when a relator needed to file a qui tam action under the False Claims Act (“FCA”). Earlier this month, the Court decided in Cochise Consultancy Inc. v. United States ex rel. Hunt, that relators can … Continue Reading
The motivating force behind the False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”) is its provision for qui tam enforcement, which authorizes private parties (aka relators) to initiate FCA cases on behalf of the United States. Id. § 3730(b)(1). Immediately after re-invigoration of the FCA in 1986, scholars and litigants questioned the constitutional validity of … Continue Reading
Last year, we wrote about a trial court’s decision to dismiss a False Claims Act (“FCA”) complaint regarding alleged Trade Agreements Act (“TAA”) non-compliances because the relator failed to plead fraud with “particularity” under Rule 9(b). That decision offered a sweeping rebuke of speculative FCA claims, and emphasized why it can be difficult to present … Continue Reading
Due to the government’s increased focus on domestic preference requirements – for example, through President Trump’s formal policy and action plan for agencies to “scrupulously monitor, enforce, and comply” with the so-called “Buy American Laws,” and Congress’s proposed legislation to make certain Buy American requirements more robust – contractors should not be surprised if there … Continue Reading
[A modified version of this blog post was published in Law360.] Last month, Senators Dan Sullivan (R-AK) and Maria Cantwell (D-WA) introduced legislation to “improve the requirement to purchase domestic commodities or products” under the National School Lunch Program (the “NSLP”) and the School Breakfast Program (the “SPB”). Even if this legislation fails to make … Continue Reading
In a recent False Claims Act (“FCA”) case, United States ex rel. Louis Scutellaro v. Capitol Supply, Inc., the U.S. District Court for the District of Columbia held that the defendant’s failure to retain Country of Origin (“COO”) documentation for the products it sold to the government entitled the relator and the government to an … Continue Reading
A U.S. District Court recently dismissed a False Claims Act (FCA) qui tam action alleging that numerous GSA Schedule contractors violated their obligations under the Trade Agreements Act (TAA), resulting in the submission of false claims under the “implied certification” theory of FCA liability. As discussed further below, the court’s decision — United States ex rel. Berkowitz … Continue Reading
Last week, the United States Supreme Court heard argument in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby over the False Claims Act’s (FCA) “seal requirement.” The controversy highlights an important statutory tool for government contractors who face allegations of making false claims for payment. It also provides important lessons for … Continue Reading
The Fourth Circuit recently held, in an unpublished opinion, that the anti-retaliation or “whistleblower” provisions of the False Claims Act (“FCA”) protect an individual’s efforts to stop a contractor from violating the FCA, even when there is no “distinct possibility” of litigation. This “distinct possibility” standard was adopted prior to 2009 when the whistleblower provision … Continue Reading
On May 3, 2016, the U.S. Railroad Retirement Board (“RRB”) issued an interim final rule adjusting civil False Claims Act (“FCA”) and Program Fraud Civil Remedies Act (“PFCRA”) monetary penalty amounts for the RRB. The interim final rulemaking resulted in an increase of the PFCRA maximum to $10,781 and a new FCA range of $10,781-$21,563. … Continue Reading
On December 3rd, the Department of Justice released its annual summary of recoveries in False Claims Act (FCA) cases. Although down from last year’s $5.69 billion, this year’s recoveries of $3.5 billion demonstrate the power that the government wields to drive settlements of fraud allegations. Of the $3.5 billion, $1.1 billion in recoveries are attributable … Continue Reading
On October 31, 2015, the U.S. Court of Federal Claims (CoFC) in Horn & Associates, Inc. v. United States (No. 08-415C) rejected three fraud-based counterclaims that were filed by the U.S. Government in response to a breach of contract action brought by the plaintiff, Horn & Associates (Horn), through a certified claim under the Contract … Continue Reading
Following an 8-2 en banc decision issued by the United States Court of Appeals for the Eighth Circuit earlier this month, potential relators may think twice before bringing their False Claims Act (“FCA”) qui tam suits in the Eighth Circuit. In Rille v. PricewaterhouseCoopers LLP, No. 11-3514 (8th Cir. Oct. 5, 2015), the Court vacated a … Continue Reading
United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55396 (9th Cir. July 2015) is one of many recent decisions limiting a contractor’s ability to dismiss False Claims Act (“FCA”) lawsuits at an early stage of the litigation. In Hartpence, the Ninth Circuit resurrected two FCA cases in one sweeping decision by interpreting the … Continue Reading
In the recently decided U.S. ex rel. Heath v. AT&T Inc., No. 14-7094 (June 23, 2015), the D.C. Circuit rejected the general consensus of the circuit courts and held that the False Claims Act’s (“FCA”) first-to-file rule is not jurisdictional. This decisions creates a circuit split between the D.C. Circuit and the First, Fourth, Fifth, … Continue Reading
On Wednesday, April 29, the Eighth Circuit issued an opinion holding that evidence of a for-profit college’s falsification of grades and attendance records may support a claim that it “fraudulently induced the Department of Education [“DOE”] to provide [it] funds,” and was thus liable under the False Claims Act (“FCA”). Specifically, the claim alleged that, … Continue Reading
Earlier this month, a medical device company settled allegations that it had violated the False Claims Act (FCA) by improperly certifying that it had complied with the Trade Agreements Act (TAA) when providing the U.S. Government with end products manufactured in Malaysia. The TAA requires certain end products sold to the U.S. Government to be … Continue Reading
When the Supreme Court convenes its “long conference” on Monday to consider pending petitions for certiorari, much of the public focus will be on the various cases about same-sex marriage. Government contractors, however, should pay closer attention to Gosselin World Wide Moving, N.V. v. United States ex rel. Bunk et al., a case involving the … Continue Reading
The Eighth Circuit recently joined the ranks of four other federal circuits allowing whistleblowers to plead False Claims Act (FCA) violations without identifying specific examples of false claims submitted for reimbursement. In so doing, the Eighth Circuit concluded that the heightened federal pleading standards required for fraud claims are satisfied where a whistleblower can provide … Continue Reading
Last month, the U.S. Court of Appeals for the First Circuit affirmed the award of a $50 million tax refund to Fresenius Medical Care Holdings, Inc. The court agreed with Fresenius that certain payments in settlement of alleged False Claims Act violations were tax-deductible. The case is Fresenius Medical Care Holdings, Inc. v. United States, … Continue Reading
On August 29, the U.S. Court of Appeals for the D.C. Circuit upheld the dismissal of a qui tam suit under the False Claims Act (“FCA”) alleging that government contractor Govplace made false statements and false claims by selling to the Government, via its GSA schedule contract, computer and other products not originating in designated … Continue Reading
