Continuing our coverage of the ABA's White Collar Crime Conference, Arnold & Porter's very own Christian Sheehan led a spirited discussion on the False Claims Act (FCA) this afternoon. Joining firm and in-house counsel on the panel was Andy Mao, Deputy Director of DOJ's Civil Fraud Section. The panel had a bunch to talk about, with two new FCA cases on the Supreme Court's merits docket this year and DOJ's ever-growing focus on corporate cooperation at the forefront of much of this year's conference:
Why is the FCA ripe for circuit splits? Just a few years ago, during oral argument in Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315, Justice Alito famously trashed the FCA as a "terribly drafted statute," remarking that, if he could "grade whoever drafted it," they would not be awarded top marks. This afternoon's panel surmised that its ambiguities likely have led the Supreme Court to wade in to resolve circuit splits on various aspects of the FCA in a number of cases. This includes two cases in this term alone. Mao commented that he anecdotally had seen in recent years a slight uptick in relators continuing to pursue cases after DOJ declinations, and he observed that these high-profile cases before the Supreme Court have arisen from such declined cases. Others on the panel took Mao's observation one step farther, suggesting that relators are prone to taking aggressive stances, seeking to exploit the FCA's ambiguous drafting. Mao responded that DOJ...
stage at the Ninth Circuit, where pharmaceutical companies say a momentous new ruling "illustrates perfectly" the constitutional concerns of U. S. Supreme Court justices regarding FCA enforcement. ...