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False Claims Act Statistics, News & Analysis

Supreme Court Nominee Judge Gorsuch on the False Claims Act

President Trump recently announced that he was nominating Judge Neil M. Gorsuch to fill the Supreme Court seat vacated one year ago by the death of Justice Antonin Scalia. We at LLB went to work researching what a Justice Gorsuch might mean for future case law construing our favorite statute, the False Claims Act. Here is what we found.

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False Claims Act Cert. Monitor: Six FCA Cert. Petitions Bite the Dust, Five Remain

Denied petitions for certiorari are a dime a dozen. So it should not come as a surprise that most FCA cert. petitions that we write about fail. But still, we hate to see ’em go. Yet, here we are, in this first Cert. Monitor post of 2017, saying bon voyage to six FCA cert. petitions from our mid-term review, leaving just five more that remain pending.

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I Knowingly Drank Coffee With Cream Today . . .

Because I knew both that I was drinking coffee and that it contained cream. The Sixth Circuit applied similar reasoning in its most recent False Claims Act decision, U.S. ex. rel. Harper v. Muskingum Watershed Conservancy District, No. 15-4406, 2016 WL 6832974 (6th Cir. Nov. 21, 2016), in which it decided—as a matter of first impression—construction of the FCA’s scienter requirements for a reverse false claim (31 U.S.C. § 3729(a)(1)(G)) and a conversion  (31 U.S.C. § 3729(a)(1)(D)), as amended in 2009 by the Fraud Enforcement and Recovery Act (“FERA”). Construing the FCA’s reverse false claim prohibition against knowingly avoiding an obligation to the United States, the court held that liability will attach only if the offender knows both of the obligation and that he avoided it. Similarly, to be liable for a conversion under the FCA, the offender must know both that he caused to be delivered “less than all” of certain property to the government and also that the property at issue belongs to the government. With these holdings, the Harper court reaffirmed the important threshold scienter distinctions separating an ordinary breach of contract from a violation of the FCA.

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False Claims Act Cert. Monitor: Relator Asks Supreme Court to Decide If Halo's Glow Shines New Light on FCA's Knowledge Standard

The Supreme Court's decision in the patent case Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), which we wrote about previously, has now inspired a new FCA cert. petition by the relator in an 18-year-old case U.S. ex rel. Purcell v. MWI Corp., No. 16-361, in which the relator seeks review of the D.C. Circuit ’s 2015 decision, 807 F.3d 281 (D.C. Cir. 2015).

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Home Sweet Home: FHA Mortgage Insurance Carries Heavy False Claims Act Risks for Mortgage Originators

Banks are no strangers to complex regulatory schemes and close government scrutiny. That is especially true for banks originating and underwriting mortgages insured by the Federal Housing Administration (FHA), a sub-agency of the Department of Housing and Urban Development (HUD). FHA issues mortgage default insurance to lenders for more than a third of mortgages issued each year, but imposes very specific underwriting and quality control measures upon loan originators seeking FHA insurance. The scrutiny is even greater for mortgage originators authorized to issue the insurance without FHA approval. What might surprise these mortgage lenders, however, is that even seemingly small deviations from those FHA insurance underwriting rules can lead to substantial FCA liability—liability potentially larger than the value of the mortgage defaults the lender seeks to cover through FHA insurance.

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