How Defense Attorneys are Trying to Derail False Claims Act Cases
America ı By Samuel Lopez
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(USA Herald) - FCA stands for False Claims Act, which is a federal law that allows private individuals, known as whistleblowers, to file lawsuits on behalf of the government against individuals or companies that have defrauded government programs. The law applies to any program that receives funding from the government, including healthcare programs like Medicare and Medicaid, defense contractors, and other government contractors.
FCA cases are often complex and can involve allegations of a wide range of fraudulent activities, such as billing for services or products that were never provided, submitting false claims for reimbursement, and providing kickbacks to physicians or other healthcare providers. Successful FCA cases can result in significant penalties, including treble damages and fines.
The cases are U.S. ex rel. Proctor v. Safeway Inc., and U.S. ex rel. Schutte et al. v. SuperValu Inc. et al., each in the Supreme Court of the United States.
Months before the US Supreme Court rules on the viability of False Claims Act cases involving murky compliance obligations, defense attorneys are quietly imploring the US Department of Justice not to bring such cases and publicly signaling confidence that a favorable ruling is forthcoming.
The exhortations from defense counsel are occurring behind the scenes when the DOJ is weighing whether to file suit or join sealed whistleblower cases against companies accused of compliance lapses and suspicious billing in taxpayer-funded programs.
It's a trend that started emerging even before the Supreme Court recently agreed to assess the Seventh Circuit's ruling that it "does not matter" whether someone intended to commit fraud, so long as billing reflected "objectively reasonable" views of ambiguous compliance duties and those views weren't foreclosed by authoritative guidance.
FCA defense lawyers have been making the ambiguity argument more frequently at the investigative stage and early in litigation. To the extent that defense counsel can concentrate on nebulous legislative language and vague regulatory provisions and worry less about presenting evidence of good-faith compliance efforts, they might find it easier to derail FCA investigations and litigation.
The central issue at the Supreme Court is whether the FCA is covered by Safeco Insurance Co. v. Burr, a 2007 case in which the high court shielded erroneous yet reasonable compliance views involving the Fair Credit Reporting Act. Several circuit courts have analyzed Safeco in the FCA context, and that lengthy history raises the question of why defense lawyers are suddenly emphasizing ambiguity with greater gusto.
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