The False Claims Act (“FCA”) has had a somewhat mixed first half of 2023, marked by two Supreme Court decisions, significant decisions in the lower federal courts, and a large jury verdict for the government, but also by lower-than-usual recoveries by the government through settlements.

The June decisions by the Supreme Court settled circuit splits over scienter and the government’s dismissal authority in ways that generally aligned with expectations among the FCA bar as far as the core issues went, but that also highlighted key questions for the lower courts to resolve going forward. Meanwhile, the U.S. Department of Justice (“DOJ”) reached FCA resolutions totaling more than $485 million during the first half of the year, as well as an FCA judgment that by itself equaled approximately $487 million. Lower federal courts grappled with issues surrounding causation, the FCA’s public disclosure bar, and the standard for pleading FCA allegations with particularity under Federal Rule of Civil Procedure 9(b).

Below, we summarize recent enforcement activity, then provide an overview of notable legislative and policy developments at the federal and state levels, and finally analyze significant court decisions from the first half of the year. Gibson Dunn’s recent publications regarding the FCA may be found on our website, including in-depth discussions of the FCA’s framework and operation, industry-specific presentations, and practical guidance to help companies navigate the FCA....

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