The Federal Bar Association’s (FBA) 2025 Qui Tam Conference was especially worthwhile this year, featuring a robust panel of legal experts, former U.S. attorneys, Department of Justice (DOJ) officials, and False Claims Act (FCA) defense lawyers, like us, to review the latest trends and challenges in False Claims Act (FCA) litigation. From damage modeling and voluntary self-disclosure to the complexities of navigating U.S. Attorney’s Office (USAO) investigations, this year’s event provided lots of helpful practical advice and insights into trends likely to shape the future of FCA enforcement.
In this post, we’ll explore the most significant issues discussed during the conference.
Given the uncertain climate presented by changes at DOJ, one significant takeaway from the DOJ representatives was the sense that the Department expects to continue aggressive civil enforcement.
Damage Modeling in False Claims Act Cases
One of the standout sessions at the conference tackled the complexities of damage modeling in FCA cases. The panel, lead Tampa’s own Jason Mehta, of Foley & Larner (https://www.foley.com/people/mehta-jason/), featured experienced litigators and former Assistant U.S. Attorneys, discussing how the DOJ approaches damage calculations, especially in healthcare and government contract contexts.
Key Takeaways:
- Diverging Perspectives: The DOJ typically takes a broad approach to damage modeling, emphasizing the overall impact on government programs, while relators (whistleblowers) may focus on more specific instances of misconduct. Defense attorneys often challenge these calculations by questioning the methodologies used.
- Litigation Risk and Multipliers: The conference highlighted the strategic use of multipliers in FCA cases. While a multiplier of two is generally the default, the DOJ may adjust this based on litigation risks or cooperation credit. Robust discussions on the value of highlighting litigation risk provided useful practice pointers. Cooperation by defendants can lead to significant reductions in penalties.
- Relator’s Fees and Fairness: The panel also explored how relator’s fees are calculated and negotiated. Fairness and reasonableness play pivotal roles, particularly when DOJ and defendants reach settlement agreements.
Voluntary Self-Disclosure: Navigating Complex Guidelines
Another issue discussed was voluntary self-disclosure and its impact on FCA investigations. The DOJ has been actively encouraging companies to disclose potential misconduct, offering credit for proactive cooperation and remediation.
Key Insights:
- DOJ’s Disclosure Policy: Updated guidelines clarify that timely self-disclosure can lead to a presumption of declination, particularly in cases where the company demonstrates effective compliance programs and extraordinary cooperation.
- Credit and Cooperation: Full cooperation, including the disclosure of all relevant facts, can result in significant credit, though it cannot reduce penalties below the government’s full compensation for losses.
- Risks vs. Rewards: While self-disclosure can mitigate penalties and establish credibility, it also exposes the entity to potential civil and criminal liability. Organizations must weigh these risks carefully.
This emphasis on self-disclosure illustrates a growing trend in FCA enforcement, where proactive compliance and cooperation are increasingly rewarded.
Navigating USAO Investigations: Best Practices and Pitfalls
The conference also delved into navigating investigations by the U.S. Attorney’s Office (USAO), an area fraught with challenges for both relators and defense counsel. The panelists, including senior officials from multiple USAOs, shared practice pointers on avoiding common pitfalls in FCA investigations.
Best Practices Highlighted:
- Pre-Filing and Investigation Phases: Relators’ counsel must meticulously prepare before filing to withstand DOJ scrutiny, while defense counsel should engage early with investigators to shape the narrative.
- Settlement Strategies: Both sides benefit from transparent negotiations, with an emphasis on fair and reasonable outcomes. Cooperation credit remains a powerful tool for defendants seeking reduced penalties.
- Declined Litigation Risks: When the DOJ declines to intervene, relators face significant challenges, including the burden of proof and litigation costs. However, these cases can still result in substantial settlements or judgments.
Pandemic Fraud: Evolving FCA Enforcement Trends
Unsurprisingly, pandemic-related fraud continues to be a focal point for FCA enforcement. The conference highlighted ongoing investigations and settlements related to programs like the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL).
Emerging Trends:
- Increased FCA Filings: A record number of pandemic fraud cases were filed in FY 2024, with more expected as the COVID-19 Fraud Enforcement Task Force intensifies its efforts.
- Public Disclosure Bar Challenges: The conference highlighted a surge in qui tam filings by data miners and serial relators. While these cases vary in quality, they reflect the growing role of data analytics in FCA enforcement. As data mining relators become more prevalent, Defendants are increasingly invoking the public disclosure bar to dismiss FCA claims, arguing that allegations are based on publicly available information.
Year in Review: Legal Developments and Policy Changes
The Year in Review session provided a comprehensive update on key legal decisions and policy changes impacting FCA litigation.
Highlights Included:
- Constitutionality and Excessive Fines: Courts are increasingly grappling with constitutional challenges related to excessive fines and the separation of powers. These rulings could influence the scope and scale of future FCA penalties.
- Anti-Kickback Statute (AKS) Developments: Recent cases reinforced that AKS violations continue to be a major FCA enforcement priority, particularly in healthcare fraud.
- DOJ Pilot Whistleblower Program: The DOJ’s new pilot program aims to streamline whistleblower awards, potentially increasing incentives for individuals to report fraud.
These legal developments are likely to influence litigation strategies, settlement negotiations, and compliance practices moving forward.
Final Thoughts: The Evolving Role of Whistleblowers in FCA Enforcement
The 2025 Qui Tam Conference was excellent –with evolving damage modeling strategies, increased emphasis on voluntary self-disclosure, and heightened scrutiny of pandemic fraud, the landscape of Qui Tam litigation is becoming more complex and dynamic. The insights shared at this year’s conference provided a useful practice pointers to both Relator and Defense counsel.
The conference also provided ample opportunity to network, and on a personal level, it was nice to spend time with our Tampa FCA practitioner colleagues, including Brian Albritton, Raquel Jefferson, Jason Mehta and Joe Swanson.
Join the Conversation
What are your thoughts on the latest trends in FCA enforcement? How do you think these issues will shape future litigation strategies? Share your insights and continue the conversation in the comments below!
