Law360, New York (January 25, 2011) -- Health care attorneys handling cases under the federal civil False Claims Act have negotiated case settlements based on a multiplier of alleged actual damages to federally funded programs. Double, and in cases of egregious conduct, treble, actual damages may form the basis for compromise, and penalty assessments may not even figure into settlement discussions.

But in cases where the parties litigate a federal FCA action, penalty assessments, starting at $5,000 per claim, are a real concern. And conflicting precedent exists as to whether a litigating defendant can attack the imposition of FCA civil penalty assessments as excessive under the Eighth Amendment to the U.S. Constitution; see e.g. United States v. Cabera-Diaz, 106 F.Supp. 2nd 234 (D.P.R. 2000); United States v. Mackby, 261 F3d 821 (9th Cir. 2001); see also Hays v. Hoffman, 325 F3d 982 (8th Cir), cert denied 124 S. Ct. 277 (2003).