The Situation: The Senate is set to consider a bipartisan bill, S. 2428, that would make substantive and procedural amendments to the False Claims Act ("FCA"). The Senate Judiciary Committee voted the bill out of conference on October 28, 2021, referring it to the Senate for vote.
The Potential Result: If passed, the proposed amendments would make a number of potentially harmful changes to the FCA. For example, S. 2428 would constrain the Department of Justice's right to dismiss FCA complaints filed by relators-raising constitutional as well as practical problems. It also threatens to undermine existing Supreme Court precedent on materiality and potentially ease the plaintiff's burden of proof in False Claims Act cases.
Looking Ahead: The proposed changes in S. 2428 represent bad policy and would result in numerous negative consequences for FCA litigants and the health care industry, as well as anyone who submits claims for government payment in general. The amendments would tilt FCA litigation even further in favor of the government and qui tam relators and increase the likelihood of frivolous lawsuits, while threatening to make it harder to dismiss frivolous or meritless cases.
In July 2021, a bipartisan group of senators introduced a bill, S. 2428, entitled the False Claims Amendments Act of 2021 ("S. 2428"), which proposed substantive and procedural amendments to the False Claims Act ("FCA"). After multiple revisions to the bill, members of the Senate...
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