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Expanded False Claims Liability

BY Peter D. Hardy
June 30, 2009

Besides its changes to criminal law described in this issue, the Fraud Enforcement and Recovery Act of 2009 (FERA), signed into law on May 20, 2009, significantly increases companies' exposure to civil lawsuits brought by the government and whistleblowers. FERA amends ' for the first time in 23 years ' the False Claims Act (FCA), 31 U.S.C. ' 3729, often employed by qui tam relators to pursue fraud against the government, including alleged fraud involving health care providers, government contractors, and now the use of Troubled Asset Relief Program (TARP) funds. These expansions invite both new legal battles and a likely increase in FCA lawsuits, including those involving parallel criminal and civil proceedings.

'Presentment' Unnecessary

FERA greatly increases the potential liability of federal subcontractors and subgrantees. The FCA amendments specifically respond in part to two court decisions ' United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), and Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008) ' that, according to a Senate Judiciary Committee report, undermined the FCA's effectiveness by “limiting the scope of the law and allowing subcontractors and non-governmental entities to escape responsibility for proven frauds.”

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