Proposed Bipartisan Legislation Would Further Burden the Defense of FCA Cases

The False Claims Amendments Act of 2021, introduced late last month by a bipartisan group of senators led by Sen. Chuck Grassley (R-IA), could make defending False Claims Act cases substantially more difficult. While the proposed bill has several parts, by far the most significant is a provision that would require FCA defendants to “rebut” a showing that alleged misrepresentations were “material” by the high “clear and convincing evidence” standard.

Materiality, as that term is used in the FCA, was clarified somewhat by the Supreme Court’s decision in United Health Services v. United States ex rel. Escobar. That case held, first, that even “implicit” misrepresentations about compliance with a statutory, regulatory, or contractual requirement may be actionable under the FCA.

Source:

• Bradley Arant Boult Cummings: Proposed Bipartisan Legislation Would Further Burden the Defense of FCA Cases