On January 27, 2016, Alston & Bird’s Andy Howard and Jessica Sharron presented a live webinar titled “The False Claims Act: Recent Trends and Hot Topics” in connection with Lorman Education Services. In this 90-minute session, the attorneys covered recent developments in False Claims Act (FCA) law; the state of attorney-client privilege in FCA whistleblower (“qui tam”) lawsuits; the growing use of civil investigative demands (CIDs) and how to survive CID audits and investigations, workforce training, and FCA claim mitigation techniques; and the disagreement in various federal appeals courts about the effect of a violation of FCA’s seal requirements.
The federal FCA and various state counterparts remain the most widely used prosecutorial tools for combating procurement fraud. Year 2015 was a banner year for demonstrating the highly punitive nature of the FCA, as the government collected $3.5 billion in FCA settlements and judgments, including $1.1 billion from qui tam cases in which the government did not intervene. With the number of FCA cases continuing to rise and prosecutorial agencies touting year-over-year record-breaking recoveries, contractors and their counsel need to understand the mechanics and scope of the FCA is as strong as ever.
The examples discussed during the presentation served as a reminder that, unlike common law regarding fraud, the FCA does not have a requirement of scienter or intent to defraud. The presentation also described important changes in the interpretation of the FCA in 2015. Courts considered a number of FCA issues, including the viability of the implied certification of liability (United States ex rel. Badr v. Triple Canopy, Inc., 775 F.3d 628 (4th Cir. 2015)) and the so-called “first to file” rule (Kellogg Brown & Root Servs., Inc. v. U.S. ex rel. Carter, 135 S.Ct. 1970 (2015)), and provided important lessons for conducting internal investigations under the FCA (In re Kellogg Brown & Root, Inc., et al., 756 F.3d 754 (D.C. Cir. 2014)). These developments, as well as the increased prevalence of civil investigative demands, which the government uses to decide whether to initiate FCA action or intervene in qui tam cases, all underscore the importance of taking precautions to cultivate a culture of honesty and responsibility within organizations that contract with the government to avoid running afoul of the FCA.
