Partner Derek Adams was recently quoted in the Law360 article “FCA Overhaul Bill May Miss Mark On Reining In Fraudsters”. The article argues that a proposed Senate bill aimed at strengthening the government's enforcement actions under the False Claims Act could instead have the opposite effect with conflicting and potentially unconstitutional language that may elevate a defendant's position.  The False Claims Amendments Act of 2021 requires defendants to present "clear and convincing" evidence to rebut a showing by a whistleblower or the government that an alleged false claim is material to the government's decision to reimburse a contractor for their payment claim.

According to Mr. Adams, the materiality of the government's decision to reimburse a contractor is to be based on a "preponderance of the evidence" in the bill, but that requirement is already the standard for the government or relator. If the government can do that, "that's the end of the road right there under the current False Claims Act." 

He added, “The actual revisions of the statute are, I think, ill-conceived.  They don't accomplish what [bill sponsor Senator Grassley] wants to accomplish and, in fact, they accomplish the opposite in a lot of respects. They would cause more disputes over the application of the FCA; they would make it more difficult for the DOJ to recover in cases."

Read the entire article here.

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