False Claims Act Litigation: Proof, Defenses, Individual Liability, and More

False Claims Act (FCA) litigation increases in number and scope every year. In 2016, the DOJ recovered more than $4.7 billion in settlements and judgments in FCA cases and there were more than 700 new whistleblower suits filed under the FCA. The DOJ’s recent enforcement efforts have also continued to demonstrate its new focus on individual liability pursuant to the 2015 Yates Memo.

The Supreme Court resolved a circuit split in June 2016 when it issued a unanimous decision in Universal Health Servs. Inc. v. United States ex rel. Escobar, which confirmed that implied certification can be a basis for liability under the FCA. The court also, however, underscored the need for rigorous enforcement of the FCA’s materiality and scienter requirements. Over the past year, lower courts have begun to apply the principles of liability espoused in Escobar and already are coming to different conclusions about how and when a defendant can be liable under the FCA.

Listen as our panel of litigators outlines tactics for defending FCA cases. The panel will discuss recent key developments in FCA cases and how they may affect potential defenses, including individual liability and the impact of the Yates Memo on FCA liability and the developing case law under Escobar. The program will look at recent trends in FCA litigation and recent case law developments in these and other areas.

1. Recent FCA litigation trends
2. FCA claims
   1. Elements
   2. Statute of limitations
   3. Scope
   4. Scienter
   5. Materiality: Escobar and the implied certification theory
   6. Burden of proof
   7. Defenses
   8. Damages
3. Individual liability: Impact of Yates Memo on FCA liability
4. Reverse false claims

The panel will review these and other key issues:

• What has been the impact of the Yates Memo on individual liability in the context of FCA litigation?
• How are courts interpreting the implied certification theory post-Escobar?
• What are the recent developments impacting FCA “reverse false claims” enforcement?