11th Circ. Scrutinizes Qui Tam History in FCA Challenge

Litigation attorney Megan Mocho was quoted in a Law360 article recapping a hearing in a challenge to the constitutionality of the False Claims Act (FCA) before a federal appellate court. The U.S. Court of Appeals for the Eleventh Circuit heard arguments from medical providers and business leaders that qui tam lawsuits, in which a relator sues on behalf of the government, violate the appointments clause of the Constitution because they allow self-appointed individuals to exercise executive authority. The U.S. Department of Justice (DOJ) contends that qui tam litigation is more similar to private lawsuits that do not require a government-appointed position to initiate and that because the FCA grants the government flexibility to intervene, there is no improper exercise of federal authority. Ms. Mocho, who co-chairs Holland & Knight's False Claims Act Defense Team, commented that the proceedings did not give a clear indication of how the court will rule, though a decision deeming the qui tam provisions unconstitutional would not surprise her. She added that the panel's questions signaled the judges understand the magnitude of the case outcome.

"I do think that they are truly struggling with the idea that this is a constitutional application of executive power," she said. "This was really a case that's going to come down not to the quality of the lawyering, but just the underlying question."

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