Gone are the days of the False Claims Act (FCA) being associated primarily with defense and other government contractors. Amendments to the Civil War–era statute have expanded the FCA’s reach and emboldened the US Department of Justice (DOJ) and qui tam relators’ bar to bring allegations against businesses in all sectors. While the main basis for FCA liability is making a false claim for payment to the government, which remains the focus of allegations against defense and other government contractors and those in the healthcare industry, relators and the Justice Department alike have increased their use of the “reverse false claim” provision to allege that purely commercial businesses with no ties to a government contract or government funding have violated the FCA by avoiding an obligation to pay government customs duties.

Those facing these civil allegations are met with the prospect of treble damages, per-claim penalties, and a host of significant collateral consequences. We highlight below recent enforcement trends and emerging issues with the FCA across the industry.

FCA IN THE COURTS

The last US Supreme Court term saw two cases with a direct impact on the FCA. The first, United States ex rel. Schutte v. SuperValu Inc., found that a subjective, rather than objective, scienter standard applies in the case of ambiguous requirements. That holding, and certain other comments from the Court about the FCA’s “knowing” standard, has already generated significant discussion...

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