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False Claims Act Statistics, News & Analysis

False Claims Act Cert. Monitor: Solicitor General Asked to Weigh in on Public Disclosure Bar Petition, and New Petition Filed on FERA Retroactivity

Straight out of the gates from the long conference, the Supreme Court yesterday, October 3rd, called for the views of the Solicitor General (CVSG) on a relator’s cert. petition about the FCA public disclosure bar in U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A. (“ABLE”), No. 16-130, a case which we have written about previously. The petition asks whether a public disclosure of a broad, general category of alleged misconduct bars an FCA claim about a narrower, specific subtype of that misconduct, even though that subtype was not specifically addressed in the public disclosure. Also, a new petition has been filed on the question of the retroactive application of the 2009 FCA amendments. Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408.

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False Claims Act Cert. Monitor: Supreme Court Will Consider Four FCA Petitions Today

Today, at the Supreme Court’s 2016long conference,” the justices will consider some 1,600 petitions for certiorari in a single day. There are four FCA cert. petitions up for review. We covered those petitions in an earlier FCA Cert. Monitor post. In short, two of the petitions raise questions related to the public disclosure bar, U.S. ex rel. Cause of Action v. Chicago Transit Authority, No. 16-131; U.S. ex rel. Advocates for Basic Equality, Inc. v. U.S. Bank, N.A., No. 16-130. The remaining two petitions concern the application of Rule 9(b), U.S. ex rel. Walterspiel v. Bayer AG, No. 16-8, and what preclusive effect, if any, a prior determination that the government is not entitled to restitution has on the government’s right to seek damages in an FCA case, Anghaie v. United States, No. 15-1456. We are watching these cases closely and will report on the Court’s decisions.

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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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