A prominent FCA practitioner observed twenty years ago that while FCA settlements were common, it was impossible to find a standard settlement agreement, if there was such a thing, or a DOJ policy on point.¹ His words ring true today. While the FCA has become the Government’s principal anti-fraud weapon, little has been written about the process by which such settlements are negotiated or what they even say. This is surprising since most recoveries come from quiet settlements, not jury verdicts.
In “Negotiating False Claims Act Settlements,” a BRIEFING PAPER published by West, C&M attorneys Robert Rhoad, Jonathan Cone, and Rob Sneckenberg describe the key provisions in FCA settlement agreements and offer practical guidelines on negotiating a release to fit your company’s situation. While in some instances the Government may plant its feet firmly in the ground and refuse to negotiate a specific clause, there is still room for negotiation. The PAPER identifies critical clauses in FCA settlements that companies can negotiate—e.g., covered conduct, denial of liability, and scope of release—and other provisions that rarely change.
For interested readers, C&M maintains a database of FCA settlements that is publicly available on our website here.
¹ Brian Elmer, “False Claims Act Settlement Agreements,” 5 Crowell & Moring Business Crimes Update (Jan. 1994), http://www.crowell.com/Practices/White-Collar-Regulatory-Enforcement/articles/False-Claims-Act-Settlement-Agreements-Crowell-Moring-Business-Crimes-Update-Issue-No-5.