False Claims Act: 2020 Year-in-Review

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The Department of Justice (DOJ) announced on January 14, 2021 that it had recovered $2.2 billion in False Claims Act (FCA) settlements and judgments in its 2020 fiscal year. While that figure is down considerably from prior years, the decline may be explained in part by the disruption caused by the coronavirus pandemic. The government’s total recovery since the 1986 amendments has now reached a staggering $64 billion.

The federal courts remained active in developing the law on a number of important topics for FCA practitioners, including on issues subject to entrenched—and expanding—circuit splits. The split among the circuits is especially stark with respect to the government’s statutory right to seek dismissal of qui tam actions under 31 U.S.C. § 3730(c)(2)(A), with the Seventh Circuit in 2020 becoming the first to hold that the government must formally intervene in qui tam actions before seeking their dismissal. This holding added a new dimension to the split that had previously divided the D.C. and Ninth Circuits. A circuit split is also emerging between the Third, Ninth, and Eleventh Circuits on the critical question of whether an “objective falsehood” is required for FCA liability, which affects whether matters of judgment (such as physicians’ clinical opinions on medical necessity) can form the basis of an FCA claim. A petition for certiorari is pending on the question.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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