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False Claims Act Statistics, News & Analysis

  • 11
  • January
  • 2018

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Penalty Preview: Department of Commerce Increase FCA Penalties 2% to a $22,363 Max Penalty, DOJ Likely Soon to Follow

As we wrote this time last year, each year, agencies are required by the Federal Civil Penalties Inflation Adjustment Act of 2015 (“the Act”) to adjust their civil penalties to account for inflation, including the FCA’s penalties. The agencies’ deadline to issue adjustments is January 15, though last year DOJ missed the deadline by two weeks. Previously, three agencies have issued adjustments for the FCA penalty range—DOJ, the Department of Commerce (“DOC”), and the Railroad Retirement Board (“RRB”)—each making the same dollar adjustment to the FCA’s penalties. Just as in 2017, DOC is first out of the gate with its adjustments, increasing the FCA penalties by about 2% from between $10,957 and $21,916 to between $11,181 and $22,363. We expect DOJ and RRB will follow suit with identical increases sometime in the next month, and we will let you know when they do.

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  • 07
  • February
  • 2017

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The Ratchet Clicks: DOJ Increases FCA Penalties, Applies Worrisome Retroactivity Rule

Last week, we noted that DOJ missed the January 15 deadline for issuing its annual inflation adjustments to the FCA’s penalties. Perhaps DOJ read our post. Two days later, DOJ released for public inspection its FCA penalty adjustment, which was published in the Federal Register and took effect on February 3, 2017. As expected, DOJ has fallen in line with the Department of Commerce’s (“DOC’s”) earlier FCA penalty adjustment, increasing FCA penalties from between $10,781 and $21,563 to between $10,957 and $21,916.

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  • 05
  • January
  • 2017

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Early Tremors: Commerce Department Increases FCA Penalties, DOJ Likely to Follow

As we have written about previously, in November 2015, Congress instructed federal agencies to adjust civil penalties within the agencies’ respective “jurisdiction[s]” to account for inflation. 28 U.S.C. § 2461 note. As directed by Congress, in the middle of 2016, DOJ, the Railroad Retirement Board (RRB), and the Department of Commerce (DOC) issued “catch up adjustment[s].” The adjustments each doubled FCA penalties from between $5,500 and $11,000 per false claim to between $10,781 and $21,563 per false claim, but they varied as to retroactivity: DOJ’s increased penalties applied only to FCA violations occurring after November 2, 2015, RRB’s were not retroactive, and DOC’s were fully retroactive. 28 C.F.R. § 85.3 (DOJ); 20 C.F.R. § 356.3 (RRB); 15 C.F.R. § 6.4 (DOC).

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  • 20
  • September
  • 2016

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Zero Damages Doesn’t Mean Zero Liability: DOJ Avoids Twice-Reversed False Claims Act Damages Calculation and Gets Paltry Disgorgement of Profits Instead

It is common knowledge that even if a relator or the government cannot prove the government suffered actual damages, the court may still impose FCA penalties where there is liability. But a recent district court opinion provides a reminder that the government’s recovery, even in FCA cases with zero actual damages, can contain a third component: disgorgement of profits based on claims of common law unjust enrichment, although such claims can be brought only by the government.

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