In Law360 Article, Akin Gump Authors Argue Against Proposed Amendments to False Claims Act

Law360 has published the article “FCA Proposal Is Unfair And Would Hinder Economic Growth,” written by Akin Gump health care and life sciences partner Robert Salcido and associate Emily Gerry. The article discusses proposed legislation that would revise the False Claims Act (FCA) but also “dramatically” change a key unanimous U.S. Supreme Court precedent.

Salcido and Gerry note that the FCA “is the government’s primary weapon for combating fraud against the federal government.” They add that it “empowers private citizens, known as relators, to bring qui tam actions — suits brought on the behalf of the government — and to obtain a substantial bounty if they prevail.”

The proposed changes, the authors write, provide “that plaintiffs must prove materiality by a preponderance of evidence and, if established, would for the first time shift the burden to defendants to disprove materiality by clear and convincing evidence.” They would also penalize those defendants “for obtaining the evidence they need from the government to satisfy the heightened burden that now would be placed on them to disprove their guilt.”

In the end, the article states, the legislation would “turn the traditional burden-of-proof standard for fraud claims on its head and stack the deck against the defendant in any FCA action,” putting “vital companies and institutions at serious and unnecessary risk.”

To read the article in its entirety, please click here.