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Second Circuit Confirms ‘Willfulness’ Standard for Scienter Has Teeth Under the Anti-Kickback Statute and False Claims Act

In a new decision that could have a significant impact on the persistent efforts of relators to reach otherwise lawful conduct and characterize it as a violation of the Anti-Kickback Statute (AKS), the US Court of Appeals for...more

Federal Court Rules False Claims Act Whistleblower Must Face Counterclaims

A recent decision by a federal district court affirmed the ability of defendants in False Claims Act actions brought by qui tam relators to assert counterclaims against relators. The court’s opinion highlights the opportunity...more

In Key FCA Scienter Opinion, US Supreme Court Turns Focus on Subjective Intent

The United States Supreme Court held on June 1 that the False Claims Act’s (FCA) scienter element requires analysis of the defendant’s subjective intent at the time of the alleged false claim, and that a defendant can be...more

US Supreme Court Evaluates False Claims Act Scienter Standard in Potentially Landmark Case

The US Supreme Court heard oral arguments on April 18 in United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway Inc., companion cases that raise the important question of whether, under...more

US Supreme Court to Address Scienter Standard Under False Claims Act

In what could be the most significant development for False Claims Act (FCA) jurisprudence since Universal Health Services v. United States ex rel. Escobar, on January 13, 2023, the US Supreme Court agreed to consider whether...more

FCA Update from Morgan Lewis Team Recognized as Most Active FCA Defense Counsel

In a move that threatens to undermine some key defenses to liability under the False Claims Act, a bipartisan group of senators voted to advance the False Claims Amendments Act of 2021 (SB 2428) out of the Senate Judiciary...more

Senator Grassley Drafting Legislation to Potentially Limit DOJ Dismissal Power in FCA Cases

Senator Chuck Grassley plans to propose legislation that would require the US Department of Justice to state its reasons for dismissal of qui tam cases over the objection of the relator. ...more

Higher Education Community Faces Federal Scrutiny of Financial Ties to China

Both individuals and higher education institutions could face criminal and civil liability if they are not in compliance with federal law in the administration of federal grants and expenditure of federal research dollars, as...more

US Supreme Court Declines to Consider DOJ Dismissal Power in FCA Cases

In a recent denial of a petition for certiorari, the US Supreme Court declined to resolve the standard courts should use when evaluating government motions to dismiss in qui tam cases. ...more

CARES Act’s Substantial Relief Funds Create Fraud Risk

Provisions in the Coronavirus Aid, Relief, and Economic Security (CARES) Act show that the government intends to closely monitor and oversee management of the relief funds, as the act makes available more than $2 trillion to...more

Ninth Circuit Panel: Escobar Test for Implied Certification Liability Is Mandatory

Unless and until the US Court of Appeals for the Ninth Circuit, “en banc, interprets Escobar differently,” a Ninth Circuit panel, relying on past case law, has ruled that relators seeking to establish False Claims Act...more

Acting Associate AG Panuccio Emphasizes DOJ’s Recently-Announced Policy Initiatives

Acting Associate Attorney General Jesse Panuccio delivered remarks on June 14 in Washington DC at the American Bar Association’s 12th National Institute on the Civil False Claims Act and Qui Tam Enforcement. Mr. Panuccio...more

DOJ Targeting Private Equity Firms in False Claims Act Litigation

A recent complaint by the US Department of Justice against private equity firm Riordan, Lewis & Haden signals that such firms could be a new class of defendants in False Claims Act cases. Private equity firms are thus...more

DOJ Memorandum Supports Government Dismissal of Qui Tam False Claims Act Cases

In a recent memorandum, the US Department of Justice provided guidance to its attorneys on when they should seek dismissal of False Claims Act cases filed by relators. This appears to be the first directive advising DOJ...more

DOJ Announces $3.7 Billion in 2017 FCA Recoveries

DOJ highlights healthcare, housing and mortgage, and procurement fraud as largest areas of recovery; impending changes under the new tax legislation could limit tax deductions for False Claims Act payments....more

US Supreme Court Opines on Implied Certification Theory in Escobar

The Court’s rejection of the condition of payment analysis and adoption of a rigorous materiality standard represents a significant shift in how courts must analyze FCA cases premised on underlying regulatory or contractual...more

Mandatory FCA Per Claim Penalties Dramatically Increased from $11,000 to $21,563

The penalties are potentially astronomical for entities with FCA exposure. In addition to treble damages, the False Claims Act (FCA) provides for mandatory penalties for each false claim submitted “of not less than...more

US Supreme Court Hears Oral Argument on Viability of FCA’s Implied Certification Theory

In qui tam case, Supreme Court oral argument addresses practical implications of limiting the scope of the implied certification theory of liability under the FCA....more

US Supreme Court to Decide Fate of FCA’s Implied Certification Theory

Supreme Court grants certiorari in qui tam case to consider viability and scope of the “implied certification” theory of liability under the False Claims Act. On December 4, the US Supreme Court granted certiorari in...more

First Court Opinion on When an Overpayment is “Identified” for Purposes of the 60-Day Repayment Law

The court’s interpretation complicates the already difficult task providers face in having sufficient time to assess and quantify potential overpayments. An August 3 decision in United States v. Continuum Health Partners...more

Felony Conviction Bars Whistleblower from Pursuing Qui Tam Case

A relator convicted of criminal conduct is precluded from sharing in related FCA recoveries, irrespective of degree of culpability. On July 16, a US Court of Appeals for the Ninth Circuit panel upheld the dismissal from...more

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