DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

11th CircuitBusinesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes.

Luckily, as highlighted in several of our previous posts, the U.S. Supreme Court has recently reinforced the high evidentiary threshold FCA plaintiffs need to meet to bring a successful claim under the most common theory of FCA liability.  A recently disclosed U.S. Department of Justice (DOJ) memo and a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit might similarly lead to fewer baseless claims against government contractors. Continue reading “DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits”

FCA “Qui Tam” Relator Sanctioned for Lawyers’ Scheme to Manufacture Evidence

ethicsBy Bailey McGowan, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

A double agent, an undercover operation, and deceit: No, these aren’t the well-worn plot elements of the latest James Bond movie. They are some of the tactics in a law firm’s scandalous attempt to manufacture the proof needed to survive a motion to dismiss in a False Claims Act (FCA) case, Leysock v. Forest Laboratories. The elaborate scheme exhibits the lengths to which deputized FCA plaintiffs and their lawyers will go to pursue their cut of a qui tam lawsuit’s routinely lucrative recovery. The federal court’s sanction for such behavior—barring the use of information fraudulently obtained in the plaintiff’s opposition motion—was an appropriate and laudable response, one that should embolden inspire other judges overseeing big-money litigation to take similar action against such blatant misconduct. Continue reading “FCA “Qui Tam” Relator Sanctioned for Lawyers’ Scheme to Manufacture Evidence”

After SCOTUS’s “Escobar” Decision, Courts Increasingly Sink Implied-Certification FCA Suits

scales of justiceOver the last two decades, the False Claims Act (FCA) has become a popular tool for plaintiffs—and qui tam attorneys—to enrich themselves at the expense of government contractors.  To keep the profits flowing, private plaintiffs, called relators, have invented new legal theories under which to bring their claims. As they test the FCA’s bounds, defendants have urged courts to maintain the law’s traditional limits. Last June, the US Supreme Court addressed one of FCA relators’ more successful liability expansions: the “implied-certification” theory. As a recent WLF Legal Backgrounder notes, though the Court affirmed the availability of this liability theory in Universal Health Services v. US ex rel. Escobar, it also urged lower courts to carefully scrutinize relators’ complaints as a way of limiting the implied-certification claims. Federal appellate courts have begun taking the Supreme Court at its word and have rejected claims that cannot establish materiality or satisfy the FCA’s scienter requirement. Continue reading “After SCOTUS’s “Escobar” Decision, Courts Increasingly Sink Implied-Certification FCA Suits”


DOJ*Note: This is the third in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To read posts addressing other federal agencies, click here.

As the federal government’s primary prosecutor, the Department of Justice (DOJ) serves an important role in enforcing criminal penalties.  However, DOJ frequently oversteps its bounds and advances overzealous enforcement policies.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over DOJ’s recent policies and actions with timely papers and blog commentaries, and weighed in directly through amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  This post provides a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.

Overcriminalization Timeline

In November 2015, WLF released the third edition of its Timeline: Federal Erosion of Business Civil Liberties (Overcriminalization Timeline).  Each category in the Timeline reflects a separate concern with DOJ’s approach to white-collar criminal enforcement: mens rea, DOJ criminal enforcement, attorney-client and work product privileges, deferred prosecution and non-prosecution agreements, and criminal sentencing. Continue reading “FEDERAL REGULATORY READING LIST: Resources for New Leaders at DOJ”

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • FCC privacy rule frowns upon arbitration, announces forthcoming rule to ban its use in Internet service provider-customer privacy disputes (Truth on the Market)
  • Five takeaways from influential Duke Law Center for Judicial Studies conference on settlement of class actions (Class Action Countermeasures)
  • DOJ’s settlement of two False Claims Act suits indicate impacts of Yates Memo and its call for individual accountability on federal civil enforcement (D&O Diary)
  • Why are certain counties in Pennsylvania (such as Lackawanna) strong magnets for tort litigation? (Scranton Times-Tribune; HT to Overlawyered, article quotes editor Walter Olson)
  • Empty claim on empty packaging space: Federal judge says “it defies logic” that slack fill in ibuprofen bottle (that lists pill count on label) would deceive plaintiff into a purchase (Drug and Device Law)
  • Speaking of slack fill, a plaintiff named Wurtzburger is suing KFC for $20 million because her $20 bucket of chicken wasn’t overflowing (Abnormal Use)
  • Ninth Circuit denied rehearing in case discussed in WLF Legal Pulse guest commentary that equated falling air emissions with deposits of hazardous waste under CERCLA (Corporate Environmental Lawyer)
  • Ruling on a case noted in Sept. 30 WLF Legal Backgrounder, Seventh Circuit follows Supreme Court’s restrictive view of implied-certification theory under False Claims Act (Fried Frank FraudMail)
  • Two overlooked, but critical, aspects of DC Circuit’s decision finding the Consumer Financial Protection Bureau’s structure unconstitutional (Asset Securitization Report)
  • Expect more activist group petitions seeking threatened or endangered status for species based on future risk of climate change after recent adventurous Ninth Circuit ruling (Law and the Environment)

Video of WLF’s 30th Annual Preview Briefing of US Supreme Court Term Now Available

Our annual briefing was moderated by WLF Legal Policy Advisory Board Chairman Jay Stephens and featured commentary on free-enterprise-oriented cases the Court will hear this Term by Neal Katyal of Hogan Lovells and Daryl Joseffer of King & Spalding LLP.

The following materials were provided to attendees:

The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

supreme courtThis Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.

As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari.  Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes.  From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading “The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted”