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Senator Wants to Sharpen the FCA’s Bite, Criticizes Judges for “Activist” Rulings

By Gene R. Besen & Cara Rice on March 10, 2023
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Senator Wants to Sharpen the FCA’s Bite, Criticizes Judges for “Activist” Rulings
Tingey Injury Law Firm, Unsplash

Sen. Chuck Grassley (R-Iowa) recently criticized “activist judges” for rewriting the text of the False Claims Act to achieve their own policy goals, revealing plans to reintroduce legislation that would correct “unduly restrictive” interpretations of the statute and expand liability for defendants.

Grassley — who delivered his remarks in a pre-recorded keynote speech at the Federal Bar Association’s annual Qui Tam Conference last week — took particular issue with two recent decisions from the Seventh Circuit that address what level of intent is needed to satisfy the FCA. These decisions state that defendants do not violate the FCA if they made “objectively reasonable” interpretations of otherwise ambiguous policies. According to Grassley, this decision is the “perfect example of activist judges performing mental gymnastics” to get the results they want.

“Such an absurd reading is a complete departure from both the text of the False Claims Act and over a hundred years of common-law fraud precedent,” he said. “It also ignores the importance of subjective intent, which every first-year law student is taught.”

Although Grassley remains hopeful the United States Supreme Court will “set the record straight” when it considers these cases later this year, he indicated a willingness to address the scienter standard via statute if the Supreme Court ultimately upholds the Seventh Circuit’s objective reasonableness standard.

Grassley is no stranger to introducing legislation that would sharpen the FCA’s bite. He introduced the False Claims Amendments Act in 2021, but he failed to get the bill to the Senate floor for a vote. This bill sought to clarify “confusion and misinterpretation” caused by the Supreme Court’s landmark decision in Universal Health Services v. United States ex rel. Escobar, which held that actionable false claims must have been “material” to the government’s decision to pay the claims. Grassley now intends to reintroduce this bill in the current Congressional session, and he is seeking legislative input from all stakeholders affected by the FCA, including whistleblowers.

“Don’t be bashful,” Grassley said. “Without you whistleblowers, the False Claims Act simply would not work.”

Grassley, known as the father of the modern-day False Claims Act, is perhaps the most notable leader behind the 1986 amendments to the statute, which allowed the government to seek treble damages and strengthened incentives for whistleblowers to file FCA claims. Since these amendments, more than $72 billion has been collected under the FCA, Grassley said.

“The penalties of the False Claims Act serve to deter fraud, and there is not one person who can say with a straight face that it hasn’t worked to deter fraud.”

Photo of Gene R. Besen Gene R. Besen

Gene Besen advises corporations and individuals across the country in navigating investigations, civil enforcement actions and criminal proceedings brought by various government agencies. He represents clients in a wide range of industries – including healthcare, telemedicine, pharmaceuticals, financial services, and others – that…

Gene Besen advises corporations and individuals across the country in navigating investigations, civil enforcement actions and criminal proceedings brought by various government agencies. He represents clients in a wide range of industries – including healthcare, telemedicine, pharmaceuticals, financial services, and others – that need proactive strategies to mitigate and avoid controversies related to allegations involving billing fraud, kickbacks, securities fraud, insider trading, FCPA violations, pay-to-play schemes, antitrust violations and price fixing.

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Photo of Cara Rice Cara Rice

Cara Rice is an associate in the firm’s Government Enforcement and Investigations Practice Group. Prior to joining Bradley, Cara clerked for the Hon. William Jung of the U.S. District Court for the Middle District of Florida. She graduated Order of the Coif from…

Cara Rice is an associate in the firm’s Government Enforcement and Investigations Practice Group. Prior to joining Bradley, Cara clerked for the Hon. William Jung of the U.S. District Court for the Middle District of Florida. She graduated Order of the Coif from Vanderbilt Law School, which she attended tuition-free as a John W. Wade scholar.

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  • Posted in:
    Government
  • Blog:
    Eye on Enforcement
  • Organization:
    Bradley Arant Boult Cummings LLP
  • Article: View Original Source

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