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In this episode, hosts Jason Crawford and Mana Lombardo talk with Rebecca Ricigliano and Steve Byers, both partners in the firm’s White Collar & Regulatory Enforcement Group, about key considerations for navigating parallel criminal and civil False Claims Act proceedings. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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In Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S.Ct. 1989 (2016) (discussion by C&M attorneys here), the Supreme Court held that an implied false certification can be a basis for False Claims Act (FCA) liability, “at least where two conditions are satisfied:” (1) the claim makes specific representations about the goods or services provided and (2) the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.  (Emphasis added).

Continue Reading Ninth Circuit’s Rose Decision Could be a Thorn in the Side of Relators (At Least for Now)

In this episode, hosts Mana Lombardo and Jason Crawford talk with Gail Zirkelbach, partner in the firm’s Government Contracts Group and vice-chair of the Investigations practice, about practical tips for managing internal False Claims Act Investigations. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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In this episode, hosts Mana Lombardo and Jason Crawford are joined by Will Chang and Laura Cordova, both partners in the firm’s Health Care and White Collar & Regulatory Enforcement groups, to discuss recently announced reforms to False Claims Act enforcement. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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In this episode, hosts Mana Lombardo and Jason Crawford are joined by Tully McLaughlin, co-chair of the firm’s False Claims Act Practice, to discuss some of the unique considerations for trying False Claims Act cases. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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“Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act. In this episode, hosts Mana Lombardo and Jason Crawford interview Will Chang, a partner in the firm’s Health Care and White Collar & Regulatory Enforcement groups and a former trial attorney at the DOJ Criminal Division, Fraud Section, on health care fraud and FCA issues.

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Are we experiencing a shift towards a higher bar for pursuing False Claims Act Cases?  Department of Justice guidelines may signal a new direction from the last two decades of DOJ FCA enforcement history through policies that reign in relators and articulate some boundaries for cases pursued by DOJ.  Meanwhile, Escobar progeny continues to develop  and refine the materiality requirement under the FCA.  Join us on May 17, 2018, at 8:30 AM Eastern, as Crowell & Moring attorneys Brian Tully McLaughlin, Mana Lombardo, Jason Crawford, and Nkechi Kanu lead a discussion highlighting recent developments impacting FCA investigation, enforcement, and litigation under the False Claims Act.  Specific topics include:

  • DOJ Enforcement Trends and Developments: What They Mean for Investigation and Litigation Strategy
  • The Continuing Emphasis on Materiality in the Wake of Escobar
  • Case developments and impacts

For more information and to register for OOPS, please click here.

On December 21, 2017, the Department of Justice announced that it recovered more than $3.7 billion in settlements and judgments from civil False Claims Act (FCA) cases in Fiscal Year 2017. The FY 2017 figures reflect the government’s continued trend of annually amassing multi-billion dollar recoveries under the FCA.  This recovery is the fourth largest total in thirty years, and the eighth consecutive year that recoveries have exceeded $3 billion.

At the industry level, DOJ reported $2.47 billion in recoveries from the health care sector, and $220 million from defense companies.  The largest health care industry recoveries in FY 2017 came from the drug and medical device industry.  In the procurement fraud arena, the bulk of the recovery came from two large settlements, one involving charges to the Department of Defense and the other involving charges to the Department of Energy.  The government collected approximately $1 billion from the remaining industries, including national security, food safety and inspection, federally insured loans and mortgages, highway funds, small business contracts, agricultural subsidies, disaster assistance, and import tariffs.

The change in presidential administration appears to have had little effect on FCA activity.  DOJ continued its pursuit of individual owners and executives of private corporations under the FCA.  It entered into numerous settlements wherein individuals agreed to joint and several liability with their company.  DOJ also obtained over $60 million in FCA settlements and judgments with individuals that did not involve joint and several liability with the corporate entity.  Also, the number of new FCA actions in FY 2017 remained high with relators bringing 674 new qui tam matters and DOJ initiating 125 matters on its own.  Of the $3.7 billion recovery, $3.4 billion related to suits initiated by whistleblowers, and over $3 billion of that came from suits where the government either intervened or otherwise pursued the matter.  These numbers are consistent with the prior five years and suggest that the FCA will remain an active area for investigations and litigation in 2018.

Effective August 1, the penalty range for violations under the civil False Claims Act nearly doubled, pursuant to a Department of Justice interim final rule published on June 30th.  In a “Feature Comment” published in The Government Contractor, C&M attorneys analyze how the dramatic increase in FCA penalties impacts the landscape of litigation.  The article first explains the background of the recent law and DOJ’s new rule. Next, it assesses how the increased penalties are likely to lead to an increase in FCA suits, including in cases where actual damages may be low or even nonexistent. It then discusses how the increased penalties range provides leverage to the Government (and potentially relators, too) in FCA settlement negotiations where contractors find themselves daunted by potentially gargantuan fines. Finally, it provides an analysis on constitutional challenges to exorbitant FCA penalties under the Eighth Amendment’s Excessive Fines Clause, and assesses how litigation may be prolonged by post-judgment challenges to the heightened penalty amounts.