False Claims Act Defense
- Holland & Knight’s False Claims Act Team is highly skilled at helping government contractors and grantees avoid and defend against FCA investigations and allegations.
- We have extensive experience devising strategies to mitigate risk and regularly help clients to avoid government investigations by achieving compliance with applicable fraud and abuse laws.
- When an alleged violation is asserted, our team provides clients with seasoned advice during every stage of the investigation and defense.
The civil False Claims Act (FCA) increasingly is the weapon of choice in the federal government's anti-fraud arsenal, especially in the areas of healthcare, government contracting and grants. In recent years, several factors have increased the risk of FCA exposure to contractors, grantees and participants in federal and state programs, including:
- the Fraud Enforcement Recovery Act of 2009
- healthcare legislation, including the Patient Protection and Affordable Care Act (PPACA) passed in 2010
- recent court decisions
- Department of Justice (DOJ) litigation positions
- mandatory disclosure under the Federal Acquisition Regulation (FAR)
- suspension and debarment risk
- incentives for relators (whistleblowers)
Holland & Knight's False Claims Act Team is highly skilled in defending litigation and investigations involving the Federal False Claims Act (FCA), as well as state versions of the FCA. Our team has extensive experience handling FCA cases. We focus on achieving our clients' goals by developing defenses and strategic approaches that maximize the chances of a successful and comprehensive resolution.
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 team includes a number of former federal prosecutors whose insight and experience are invaluable in defending our clients' interests.
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), Medicare or Medicaid overcharging, mischarging, overbilling, providing defective or nonconforming products, misrepresenting qualifications, conflicts of interest, false statements that are material to payment of false claims and whistleblower claims. When handling actual or threatened whistleblower claims or providing advice to avoid such claims, our FCA Team works in collaboration with members of the firm's Labor & Employment Team.
In order 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 Allegations of State False Claims
Our offices in California, New York, Florida, Illinois, Georgia, Massachusetts, Virginia, Maryland and the District of Columbia enhance our ability to handle state FCA cases in these jurisdictions.
Keys to a Successful Defense
The successful defense of an FCA case or matter, which frequently involves high stakes, requires a combination of skills and experience. Holland & Knight's FCA Team has the knowledge, 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 from false claims or false statements to the government.
- Knowledge of the contractual, regulatory and statutory requirements for government transactions: Our team includes attorneys with extensive experience and backgrounds in government contracts, healthcare and food and drug (FDA) regulation.
- Knowledge of the industry in which the case or matter arises: Our FCA Team can draw on the knowledge of attorneys throughout the firm who focus their practices in 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 government investigations, whether conducted by the Department of Justice, the Federal Bureau of Investigation (FBI) or an Office of Inspector General (OIG), and in defending 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 Department of Justice 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, and in resolving cases with DOJ.
- 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, which is reinforced by the ability to take a case through trial. Our team is well-positioned to evaluate cases for settlement and to negotiate settlements which 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. If the case cannot be resolved on favorable terms, our FCA Team can fully litigate the case through trial and on appeal, if necessary. In addition, we can draw on professionals within our firm 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 20 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, chief of staff in the U.S. Department of Justice, state prosecutor, deputy associate attorney general for the U.S. Department of Justice and deputy general counsel for the Department of Homeland Security
- partners with extensive False Claims experience and knowledge in the government contracts and procurement area
- healthcare attorneys, including former in-house counsel, with extensive regulatory, False Claims Act and Anti-Kickback Statute experience, from 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 contracting has long been the leading source of FCA cases. Government audits are routine and investigations by Inspectors General and federal investigative agencies are frequent. Currently, the American Recovery and Investment Act is creating additional opportunities for businesses looking to secure work from the federal government but it will also bring increased scrutiny of how and where tax dollars are spent. Our seasoned Government Contracts Group provides the counsel needed to assess opportunity, navigate the statutory and regulatory challenges, manage the risks inherent in this area and avoid costly FCA violations.
Healthcare and Life Sciences
Allegations of fraudulent activity against federal and state-funded insurance programs have reached epidemic proportions. DOJ has never been more 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. The 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 a pharmaceutical or medical devise FCA case must include lawyers who know the industry and the science underlying the allegations. Heightened efforts to uncover fraud mean increased risk and vulnerability for businesses operating in the healthcare arena. Our FCA Team works closely with the firm’s Healthcare and Life Sciences and Compliance Services teams to guard against actionable practices and to launch an informed and rapid response in the event wrongdoing is alleged.
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.
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.
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 Environmental
Our firm’s Energy and Environmental groups 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.
Whistleblower activities abound during this time of intense 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.