Strategic representation for serious federal cases.
Helping to mitigate litigation, exposures, and penalties.
When the Department of Justice (DOJ) decides to intervene in a qui tam action and proceed with litigation, it believes there is a strong case. The agency’s significant resources also negate many tactics that may work with a private plaintiff. Key FTLF advisory and defense services include assessing litigation risks and strategy, potential exposure to onerous damages and penalties, and weighing relevant historical precedents.
The first question that could significantly alter the scope of your litigation strategy is, what circuit is the case in? False Claims Act litigation is complex and circuit splits have developed on a number of key issues. Assessing litigation risks and strategy will vary depending on the circuit where the case has been brought.
In addition, potential exposure must be assessed in light of the FCA’s onerous damages and penalty provisions. The FCA provides for treble damages, meaning that damages are assessed at 3 times the amount of damages which the government sustains because of the violation. In addition, while the statute identifies per claim penalties of $5,000 to $10,000, that figure has been adjusted with inflation and is currently $11,463 to $22,927 per false claim. Between damages and penalties, potential exposure can be significant.
Other question that will arise during the litigation may include the following:
- How should you best utilize the Supreme Court’s guidance in Escobar to advance your dispositive motions?
- Given the Supreme Court’s guidance on materiality, which circuit courts have described as “demanding,” what steps can you take to ensure that potential materiality considerations are fully evaluated and considered?
- What United States Attorney’s Office is bringing the case and what is its historical approach to FCA litigation?
- Is a Trial Attorney from the Civil Fraud Section at main justice also involved? Are they working jointly with an AUSA on the case?
- What expert work can be done in anticipation of the DOJ’s arguments?
These are just a few of the many questions that may arise when the DOJ intervenes in an FCA case. Early planning, strategy, and evaluation of risks are critical to minimizing the damage that results from FCA litigation.