FALSE CLAIMS ACT:  Fourth Circuit’s Decision in Michaels Deepens Circuit Split on Attorney General’s Veto Power over Settlements in Non-Intervened Qui Tam Actions

By: Douglas W. Baruch, John T. Boese, Jennifer M. Wollenberg, Kayla Stachniak Kaplan

Hopes were dashed this week for the many False Claims Act (“FCA”) practitioners and parties anticipating a Fourth Circuit ruling on the use of statistical sampling in FCA cases.  While that hotly debated topic will remain unsettled for the time being, the Fourth Circuit's decision in United States ex rel. Michaels v. Agape Senior Community, Inc., No. 15-2145, 2017 WL 588356 (4th Cir. Feb. 14, 2017), is not without relevance.  To the contrary, the preliminary FCA legal question that caused the Michaels court to avoid the “statistical sampling” issue is important in its own right.  That question—whether the FCA provides the United States with unreviewable veto power over qui tam settlements negotiated by relators—is one that appears destined for Supreme Court review, with the Fourth Circuit now reviving the conflict among the circuit courts.

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