Takeways:
- Over $300 million awarded to whistleblowers.
- Dip in recoveries reflects pandemic and economic challenges.
- Number of FCA filings hits a record.
- Healthcare continues to dominate FCA recoveries with kickbacks a major focus.
- Rebound in recoveries is likely as defendants regain financial footing.
On January 14, 2021, the Department of Justice provided its annual review of cases and recoveries under the False Claims Act. Through the end of fiscal year 2020 (ending September 30, 2020), total recoveries (across all years) under the False Claims Act have eclipsed $64 billion with over $7.8 billion awarded to relators for their whistleblowing efforts.
WHISTLEBLOWERS REMAIN THE BEDROCK OF THE FCA
Whistleblower lawsuits gave rise to approximately $1.8 billion of the total $2.2 billion in annual recoveries (i.e., over 80% of the total annual recoveries). And, like prior years, whistleblowers were richly awarded for their efforts with over $309 million awarded to whistleblowers in FY 2020.
RECOVERIES DIP WITH THE PANDEMIC AND THE ECONOMY
Recoveries for the 2020 fiscal year reflect a substantial decline year-over-year (from over $3 billion in FY 2019), no doubt due in substantial part to the difficulty in achieving settlements or, via trial, judgments in FCA cases amidst the COVID-19 pandemic and the economic stress that has placed on defendants. While recoveries for 2020 amounted to over $2.2 billion (no small sum), that remains the lowest total since 2008, another year marred by economic headwinds.
With vaccine rollout progressing and the dark clouds over the economy likely receding, the decline in recoveries should be fleeting with a rebound soon to follow.
WHILE RECOVERIES DIPPED, FCA CASES ARE UP (AND NOT JUST WHISTLEBLOWER CASES)
The dip in recoveries is far from indicative of a complacent DOJ or relators’ bar. Between qui tam (i.e., whistleblower) and non-qui tam cases, 2020 had the most FCA matters opened in history, amounting to 922 matters. That is nearly 18 FCA cases filed per week.
Much of the increase is due to government-initiated cases. The number of non-qui tam cases filed in 2020 was 250, the highest in 16 years (last year, that number was 148). This nearly 70% annual jump in non-qui tam FCA matters is likely tied to the widespread fraud that has afflicted the Paycheck Protection Program and various other efforts aimed at providing trillions of dollars in economic relief during the pandemic.
Whistleblowers are not slowing down either. Fiscal year 2020 saw 672 FCA cases filed by whistleblowers under the statute’s qui tam provision, in line with historical trends (there have been an average of 675 qui tam cases filed annually over the last ten years).
HEALTHCARE CONTINUES TO DOMINATE FCA RECOVERIES WITH KICKBACKS REMAINING A PERENNIAL FOCUS
The government’s breakdown of recoveries under the False Claims Act continues to show success by the government and whistleblowers across numerous industries, with healthcare once more amounting to the lion’s share of recoveries. Of the $2.2 billion recovered in 2020, nearly $1.85 billion of that sum (over 83% of the total) was recovered in healthcare cases.
The DOJ’s press release announcing the 2020 recoveries provided some insight into its recent healthcare successes including a continuing crackdown on kickbacks, opioids, and medically unnecessary services.
A REBOUND IS LIKELY
What 2021 will bring remains anyone’s guess. Yet, if history is any indication, the decline in recoveries in 2020 will be followed by a major bounce in the coming years. That rebound may be augmented by the sheer extent of relief ($6 trillion and counting) provided by the government in response to the pandemic. Large government spending increases tend to correlate with growth in government investigations and recoveries.
