Episode 28 | The Mathematics of Nuclear FCA Verdicts

Host Jonathan Porter welcomes back to the show Husch Blackwell attorney Tanner Cook to talk about the trial penalties associated with False Claims Act (FCA) litigation. The conversation begins with a short summary of how damages are tallied and awarded in the FCA context and how these can quickly accrue into an enormous sum of money. Jonathan and Tanner then dive into why FCA trials are the exception rather than the rule and the central role trial penalties play in the way most defendants assess risk. By statute, the FCA imposes treble damages and per-false claim damages, the latter of which government prosecutors rarely seek during pre-trial settlement negotiations, greatly reducing a defendant’s exposure to risk and making settlements the preferred vehicle for resolving disputes.

While FCA trial penalties can be large, the U.S. Constitution’s Excessive Fines Clause sometimes serves as a brake on penalties. As Tanner explains, constitutional arguments relying on the Excessive Fines Clause have gained some traction in various courts around the country, providing defendants with a means to combat the FCA’s statutory requirements.

Jonathan and Tanner then pivot to a recent FCA litigation (United States of America ex rel. Uri Bassan et al. v. Omnicare Inc.) that went to trial where the defendants lost and examine how trial penalties were handled by the court. Had the judge followed the letter of the law in the case under...

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