February 26, 2009
In January, we provided you with our 2008 Year-End False Claims Act Update in which we discussed, among other things, legislation proposed in Congress in 2007 that would significantly broaden the scope of the False claims Act (the "FCA"). As we predicted, Senator Grassley (R-IA) recently introduced legislation to amend the FCA that, given the current economic environment, Congress is likely to pass. Congress may feel more pressure to pass these bills this session to demonstrate a commitment to protect taxpayer’s dollars from fraud, waste, and abuse.
First, on February 5, 2009, Senator Grassley introduced the Fraud Enforcement and Recovery Act, S. 386 ("FERA"). The primary focus of FERA is to investigate and prosecute recent financial and mortgage frauds and to cover fraud in connection with TARP funds. To that end, the bill authorizes $155 million a year for hiring fraud prosecutors and investigators at DOJ for FY 2010 and 2011 and proposes amendments to criminal fraud, money laundering, and securities statutes (principally by amending the definition of "financial institution" in Title 18 to include mortgage lending businesses). Somewhat buried within the bill is a significant amendment to the FCA: Specifically, concerned that the "effectiveness of the False Claims Act has recently been undermined by court decisions limiting the scope of the law allowing subcontractors and non-governmental entities to escape responsibility for proven frauds," FERA proposes amendments to the FCA that "clarify that the False Claims Act was intended to extend to any false or fraudulent claim for government money or property, whether or not the claim is presented to a government official or employee, whether or not the U.S. Government has physical custody of the money, and whether or not the defendant specifically intended to defraud the U.S. government." This provision is similar to the amendments proposed in S.458, the principal focus of this client alert.
Second, on February 24, 2009, Senator Grassley introduced a bill (S. 458) to the Senate Judiciary Committee to amend the False Claims Act. The proposed legislation, known as the False Claims Clarification Act of 2009, is co-sponsored by Sen. Durbin (D-IL), Sen. Leahy (D-VT), Sen. Specter (R-PA), and Sen. Whitehouse (D-RI). Sen. Grassley explained that the bill is intended to clarify, modify and strengthen the False Claims Act to combat fraud and waste in government spending, especially in light of the trillions of dollars in new government stimulus spending. This legislation explicitly identifies and attempts to overturn four federal cases and to resolve a split in the Federal Circuit Courts of Appeal interpreting the False Claims Act.
Key Provisions of the Bill
The proposed False Claims Clarification Act of 2009 expands the definition of "claim" and revises the categories of whistleblowers with standing to bring qui tam suits under the FCA, in addition to other technical amendments. These changes are attempts to overturn four federal cases and to resolve a Federal Circuit split that Sen. Grassley asserts "threaten to undermine both the spirit and intent of the 1986 Amendments" to the FCA. In fact, according to Senate Report 110-507 prepared in support of the similar 2008 version of this bill, the proposed amendments are consistent with positions taken by the Department of Justice in briefs filed in the first three cases discussed below.
Expanded definition of "claim" under 31 U.S.C. 3729(b)(2).
In his statement introducing the bill, Sen. Grassley noted that recent cases have limited the applicability of the FCA, "cutting off many worthy cases from ever going forward." For example, he notes that the Supreme Court decision in Allison Engine (discussed below) makes it difficult to recover taxpayer dollars wasted by subcontractor fraud. Specifically, he expressed concern that bailout funds used to purchase distressed assets through a third party broker as originally envisioned by the Troubled Assets Relief Program ("TARP") could be exempted from FCA liability unless the amendments are adopted. To address these concerns, the proposed legislation would supersede the FCA holdings discussed below by expanding the definition of "claim" in 31 U.S.C. 3729(b)(2) to include
any request or demand … for money or property … whether or not the United States has title to the money or property, that is presented to an officer, employee or agent of the United States; or is made to a contractor, grantee, or other recipient if the United States Government provides or has provided any portion of the money or property requested or demanded; or will reimburse such contractor, grantee, or other recipient for any portion of the money or property.
Standing in Qui Tam Whistleblower Claims.
The proposed legislation would also address two issues regarding the "public disclosure bar" in qui tam suits.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. Gibson Dunn successfully argued the Allison Engine case in the Supreme Court, which resulted in a unanimous decision by the Court. Our attorneys have handled more than 100 FCA investigations and have a long track record of litigation success. The firm has more than 30 attorneys with substantive FCA expertise and 20 former Assistant U.S. Attorneys and DOJ attorneys. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
F. Joseph Warin (202-887-3609, firstname.lastname@example.org)
Karen L. Manos (202-955-8536, email@example.com)
Joseph West (202-955-8658, firstname.lastname@example.org)
Andrew Tulumello (202-955-8657, email@example.com)
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