False Claims Act and FIRREAOur False Claims Act and FIRREA attorneys have extensive experience in nearly every facet of civil fraud enforcement, including internal investigations, subpoena and Civil Investigative Demand (CID) compliance, and litigation.
In the False Claims Act (FCA) arena, for the past 30 years, we have been on the cutting edge of litigation and debate about the FCA's scope, both with respect to qui tam actions and liability/damages theories advanced by the United States Department of Justice. Under the FCA, the United States can impose treble damages and enormous civil penalties on companies and individuals across the business spectrum, from financial institutions and government contractors, to healthcare providers, manufacturers, and importers.
Recoveries in FCA actions now average close to US$5 billion per year. Much of the Justice Department's FCA docket stems from cases initiated by private parties ("relators") under the qui tam provisions of the FCA, which enable individuals to bring suit in the name of the United States and recover bounties and attorneys' fees from any resulting litigation or settlement proceeds. Following the federal government's lead and successes, many states have adopted their own false claims laws, multiplying the potential exposure for those doing business with governmental entities.
Recent history dispels any notion that FCA liability is limited to a narrow segment of companies that contract directly with the government. FCA investigations and litigation often target companies and organizations that have no obvious governmental ties, such as those that rely on government funding for even a small portion of a project or transaction. Moreover, an increasing number of false claims cases are based not on inflated invoices, but on regulatory compliance issues, common to most businesses. While we regularly represent defense, healthcare, and other more traditional government contractors in FCA investigations, subpoena and CID compliance, and litigation, we are increasingly called upon to assist and represent entities such as municipal airport authorities, computer manufacturers, private and state universities, academic medical centers, import and export companies, financial institutions, major accounting and consulting firms, magazine publishers, and oil and gas exploration companies.
We have handled numerous appellate FCA matters and have filed amicus curiae briefs in the United States Supreme Court and U.S. Circuit Courts of Appeals addressing the full range of issues arising under the FCA.
In addition, we regularly represent companies and individuals during the critical period when the government is investigating qui tam relator claims and deciding whether to intervene in FCA actions that have been filed but remain under seal. Our extensive experience and knowledge of the FCA, as well as our ability to distill and address serious claims, have facilitated expeditious resolutions of numerous matters. For a list of our selected False Claims Act representations, click here.
Much of our work has been precedent-setting. For example:
- We were one of the first advocates to address whether government officials could be qui tam relators.
- We were the first to take the defense of an FCA "whistleblower" retaliation case to a jury trial and win.
- We handled one of the first voluntary disclosures to the HHS OIG and favorably resolved the resulting FCA and administrative liability.
- We successfully argued that a reverse false claims action should be dismissed because FCA liability did not extend to conduct that avoided a potential penalty or fine.
- We briefed arguments to the United States Supreme Court which helped stop the Justice Department's reliance on the Wartime Suspension of Limitations Act to effectively toll the FCA statute of limitations.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) creates civil liability for fourteen crimes (including mail fraud and wire fraud), and empowers the Justice Department to pursue potentially crippling civil penalties against companies and individuals for violations of those crimes without having to prove culpability beyond a reasonable doubt. Under FIRREA, the Justice Department has broad subpoena power and the benefit of a ten-year statute of limitations. The Justice Department's recent re-discovery of FIRREA has led to a flurry of FIRREA subpoena and suit activity over the last few years and has resulted in a number of multi-billion dollar settlements.
We represent clients facing FIRREA subpoenas and investigations, and are at the forefront of developing and advocating arguments against the expansive application of FIRREA in the federal courts.
We also publish the FraudMail Alert®, an email service that provides timely updates on recent FCA and FIRREA cases and developments involving civil and criminal fraud issues. Our FraudMail Alerts have covered such important developments as:
- the FCA amendments in the Fraud Enforcement and Recovery Act
- the Affordable Care Act
- the Dodd-Frank Wall Street Reform and Consumer Protection Act
- Supreme Court decisions on FCA issues, as well as
- FIRREA developments