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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

Biden Administration Proposes Whole-of-Government Approach to Pandemic Anti-Fraud Enforcement

In response to assertions that the Biden administration has not done enough to pursue pandemic-era fraud, on March 2, 2023, the White House proposed a framework for a “whole-of-government” anti-fraud effort with the US...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

State Attorneys General Post-Election Report 2022

STATE ATTORNEYS GENERAL POST-ELECTION REPORT 2022 State attorneys general continue to dominate the national legal and political landscape, with a partisan fervor that sometimes obscures the ongoing investigations and...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

DOJ Civil Division Announces New Guidance on Inability-to-Pay Claims

The US Department of Justice’s Civil Division on September 4 issued detailed internal guidance on how the Division should evaluate and handle inability-to-pay claims by entities. Acting Assistant Attorney General Ethan P....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

DOJ and SEC Issue Long-Awaited Update to FCPA Resource Guide

On Friday, July 3, the US Department of Justice (DOJ) Criminal Division and the Securities and Exchange Commission (SEC) published the Second Edition of A Resource Guide to the U.S. Foreign Corrupt Practices Act, the...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

DOJ and OIG Warn Against Fraud Schemes Related to COVID-19 Pandemic

In managing the quickly evolving healthcare landscape during this current crisis, healthcare companies should be wary of fraudsters who attempt to divert critical resources. ...more

Retail Did You Know? Price Gouging in the Time of COVID-19

Dear Retail Clients and Friends, This edition of Morgan Lewis Retail Did You Know? examines the impact of anti–price-gouging efforts by government enforcement officials in the time of the coronavirus (COVID-19) pandemic. ...more

DOJ Assistant AG Benczkowski Discusses Use of Agency Liability Theory in FCPA Prosecutions

Assistant Attorney General Brian Benczkowski delivered remarks on December 4 at the American Conference Institute’s 36th International Conference on the Foreign Corrupt Practices Act. AAG Benczkowski addressed the US...more

Practical Implications of UK Serious Fraud Office's Recent Guidance for International Organizations

The UK Serious Fraud Office’s Corporate Cooperation Guidance has implications for organizations operating inside and outside the United Kingdom. International organizations should take the Guidance into account in practical...more

CFTC Announces Self-Reporting Guidance on Foreign Corrupt Practices

Practitioners active in derivative markets regulated by the Commodity Futures Trading Commission (CFTC) are well familiar with the US Court of Appeals for the Eighth Circuit’s proclamation in 1971 that “[t]he methods and...more

DOJ Assistant AG Benczkowski Reinforces Value of Transparency in Fraud, Corruption Actions

In recent remarks, AAG Brian A. Benczkowski emphasized that the US Department of Justice remains serious about fighting corporate fraud and corruption, and noted that transparency in its criteria for prosecution is a key tool...more

DOJ Issues Guidance on Compliance Monitors in Corporate Plea Agreements

The guidance emphasizes flexibility and cost-benefit analysis in the monitor selection process, and along with the recognition by the US Department of Justice that monitors should be appointed only when absolutely necessary,...more

No Accomplice, Conspiracy Liability for Certain Foreign Nationals in FCPA Crimes

In a decision that is likely to resonate across various US government enforcement efforts, the US Court of Appeals for the Second Circuit recently ruled that the Foreign Corrupt Practices Act does not apply to nonresident...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

US Deputy Assistant Attorney General Reinforces Importance of Transparency in M&A Compliance Programs

US Deputy Assistant Attorney General Matthew S. Miner recently delivered remarks at a forum on anti-corruption compliance, where he highlighted the Department of Justice’s growing efforts to increase transparency between DOJ...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

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