False Claims Act Defense

The civil False Claims Act (FCA) is the federal government's civil anti-fraud tool, especially in the areas of healthcare, government contracting, banking, education, life sciences, construction and grants. With treble damages, per-claim penalties and the potential for exclusion or debarment, FCA cases are high-stakes matters for any targeted company.

Holland & Knight's False Claims Act Team has deep experience with litigation and investigations involving the federal FCA, as well as state versions of the FCA, including extensive experience handling FCA cases during the investigation phase. We focus on achieving our clients' goals by developing defenses and practical strategic approaches that help maximize the chances of a successful and comprehensive resolution. In many cases, our team succeeds in persuading the government to decline intervention, reducing the scope and costs of investigation, or achieving favorable outcomes through settlement or dismissal.

Whether it involves intervened cases against the government, declined cases against whistleblowers/relators or fee litigation against whistleblower/relators, our seasoned litigators have a thorough understanding of the FCA and are able to handle all phases of complex litigation, including through jury trial and appeal.

Our accomplished roster of attorneys includes a number of former federal prosecutors whose insight and knowledge are invaluable in defending our clients' interests. Holland & Knight's broad regulatory practice ensures that there is an experienced attorney available on any industry-specific issue raised as a predicate FCA violation. When handling actual or threatened whistleblower claims or providing advice to help avoid such claims, our FCA Team works in close collaboration with colleagues in Holland & Knight's highly regarded Labor and Employment Group.

Broad Experience in FCA Cases

Our False Claims Act Team has extensive experience handling many different types of FCA cases, including false certifications (express or implied), Anti-Kickback Statute or Stark Law-based cases, cases based on healthcare regulatory violations, Medicare and Medicaid billing and coding issues, defective or nonconforming products, misrepresentation of qualifications, conflicts of interest, product testing and small business affiliation.

Avoiding Risk

To help clients avoid or remediate problems related to the False Claims Act, our FCA Team regularly develops customized compliance systems, including policies and internal control procedures.

Defending Against State False Claims and Insurance Fraud Statues

The team is well versed in adjunctive state False Claims Act statutes and insurance fraud statutes, which are being increasingly used to capture purported false claims against private insurers. These statutes, like the federal FCA, incentivize whistleblowers to bring cases forward.

Keys to a Successful Defense

The successful defense of an FCA case or matter, which frequently involves high stakes, requires a combination of distinct knowledge and experience. Holland & Knight's FCA Team has the resources and depth to skillfully defend clients, including:

• Knowledge of the FCA. Our team includes lawyers who closely monitor FCA legislative and case law developments. Several members of our team are former prosecutors who are attentive to the potential criminal exposure that can often parallel civil claims.
• Knowledge of the contractual, regulatory and statutory requirements for government transactions. Our team includes attorneys with extensive experience and backgrounds in government contracts, healthcare, energy, food and drug (FDA), education and construction regulation.
• Knowledge of the industry in which the case or matter arises. Our FCA Team can draw on the knowledge of Holland & Knight attorneys who focus their practices on government contracts, healthcare and pharmaceuticals, energy and the environment, transportation, education, construction, manufacturing and financial services.
• Experience in conducting and defending investigations and audits. Our FCA Team members have extensive experience defending clients in government investigations, whether conducted by the U.S. Department of Justice (DOJ), FBI or an Office of Inspector General (OIG), as well as in Defense Contract Audit Agency (DCAA) audits.
• The experience and judgment sufficient to assess potential liability. Early case assessment is a crucial step in developing realistic and sound strategies and in identifying and developing the best possible arguments and defenses.
• Experience in communicating with the DOJ to convince the government not to intervene to take over the action where a relator has filed. The vast majority of FCA recoveries, measured by dollar amount, occur where the DOJ intervenes to take over an action filed by a relator (whistleblower) or where there is a settlement with DOJ. Our FCA Team has extensive experience in urging DOJ not to intervene to take over an action, as well as in resolving cases with DOJ when needed.
• The ability to conduct effective negotiations should a settlement be in the client's interest. Most FCA cases that are filed are resolved by settlement. The ability to achieve favorable settlements is a skill reinforced by the ability to take a case through trial. Our team is well positioned to evaluate cases for settlement and negotiate settlements that are in our client's best interest.
• The ability to handle major litigation through a jury trial and appeal, if necessary. Our FCA Team includes many lawyers who have substantial jury trial experience and is recognized among major law firms as one of the most active in FCA litigation. If the case cannot be resolved on favorable terms, our team can fully litigate the case through trial and on appeal, if necessary. In addition, we can draw on skilled Holland & Knight colleagues who concentrate on electronic discovery and Litigation Support Services.
• The ability to deal with matters collateral to the four corners of an FCA allegation or violation, including suspension and debarment. FCA allegations typically involve some collateral or additional risk. Our FCA Team is attentive to and experienced in handling suspension and debarment cases, dealing with contractual liability and attempting to minimize the negative impact to a company's reputation, brand or past performance evaluation.

Experience On Your Side

Our team includes more than 30 attorneys with the knowledge and experience required to effectively defend your interests, including:

• former prosecutors, including those who served as U.S. Attorney, Assistant U.S. Attorneys, DOJ trial attorneys, DOJ Chief of Staff, DOJ Deputy Associate Attorney General, state prosecutors and Deputy General Counsel for the U.S. Department of Homeland Security (DHS)
• partners with decades of FCA experience and deep knowledge in government contracts, grants and federal/state procurement
• healthcare attorneys, including former in-house counsel, with extensive regulatory, FCA and Anti-Kickback Statute experience – both inside and outside of government

Knowledge of Your Industry

Our False Claims Act Team provides clients with insight and experience in the substantive areas and industries where FCA claims most frequently arise, including government contracts, healthcare, construction, education, transportation, energy/environment and financial services.

Government Contracts

Government audits are routine, and investigations by Inspectors General and federal investigative agencies are frequent. Our seasoned Government Contracts Group provides the counsel needed to help assess opportunity, navigate the statutory and regulatory challenges, manage the risks inherent in this area and avoid costly FCA violations.

Healthcare and Life Sciences

Given the massive amounts of federal funds flowing into federal healthcare programs such as Medicare and Medicaid, healthcare and life sciences companies are top targets for FCA investigations and litigation. DOJ has been aggressive in this sector, reaching settlements of hundreds of millions and even billions of dollars. By far, the most common way that a company reaches the government's radar screen is through qui tam whistleblowers, whose claims are sometimes legitimate but are often frivolous or even malicious. Nevertheless, all such actions must be taken seriously by the companies charged. Healthcare's complex regulatory regime creates an environment in which good faith judgments or honest mistakes may be branded as civil fraud or even criminal conduct. An effective defense against healthcare FCA cases must include lawyers who know the industry and the science underlying the allegations. Our FCA Team includes dedicated litigators who work exclusively in the healthcare space and a deep bench of experienced healthcare regulatory attorneys, who together have handled FCA investigations and litigation nationwide for hospitals, behavioral healthcare providers, physician practices across multiple specialties, home health and hospice providers, long-term care facilities, medical device and pharmaceutical manufacturers, and retail and specialty pharmacies. For more information on Holland & Knight's extensive experience in healthcare FCA cases, see our Healthcare Government Investigations and Audits page.

Construction

Our Construction Group has extensive experience in all aspects of construction-related claims that may be scrutinized under the FCA. Given the severity of the FCA's sanctions, construction, contracting, design and other professionals involved in the construction industry require the experience and knowledge of lawyers who are well versed in construction law and in the FCA. In addition to helping companies design and implement compliance programs, our team has been successful in resolving many construction claims through settlement or litigation.

Education

Educational institutions that administer federal funding are vulnerable to government scrutiny and the threat of whistleblowers and qui tam actions. Institutions involved in medical research that is supported by government funding are particularly at risk. Our FCA attorneys have worked closely with numerous educational institutions to create and administer proactive compliance policies to reduce the likelihood of allegations or missteps.

Transportation

For more than 30 years, our attorneys have represented the varied interests of clients operating in the transportation industry. We have advised aviation, maritime and transit system clients as well as municipalities and businesses that are involved in government-funded projects and receive government grants. This wealth of knowledge and experience enables us to effectively handle issues that arise under the FCA in connection with government funding or regulatory regimes.

Energy and Environment

Our Energy and Environment practices have a long history of advising clients in all aspects of energy-related matters, including regulatory, legislative, transactional and litigation. We provide counsel for a range of projects that involve federal funding, including renewable energy projects and large-scale energy industrial projects. We also advise on the attendant risks involved in such projects. We are experienced in the FCA issues that may arise for energy and environmental industry clients, such as environmental compliance, use of inferior materials and inflated charges of various types.

Financial Services

Whistleblower activities also can arise during government scrutiny of banks and other financial institutions. Our dedicated financial services and FCA attorneys have handled numerous cases involving yield burning, arbitrage schemes, public finance abuse and other alleged violations.