Hogan Lovells publishes False Claims Act: 2018 and the road ahead

Washington, D.C., 22 January 2019 – Today, international law firm Hogan Lovells published False Claims Act: 2018 and the road ahead. The third annual report, authored by the firm’s leading FCA litigators, provides an analysis of key cases and issues around FCA enforcement, including some of the broader tensions at play in more controversial applications of the law, and developments to watch for in 2019.

The report offers detailed analysis of multiple topics relevant to FCA litigation including the continued impact of the Supreme Court’s Escobar and Digital Realty decisions, the effect of the Brand and Granston memos, liability around “false” medical judgment, the current administration’s tariffs policies, and regulatory standards around electronic health records. Several interesting trends are discussed in detail throughout the report, including:

  • Qui tam relators continue to drive the enforcement agenda and push the boundaries of FCA litigation while the Department of Justice (DOJ) has expressed concern about unchecked enforcement of the FCA by qui tam relators.
  • Courts remain skeptical of the more ambitious theories of FCA liability.
  • Escobar continues to be the bellwether case on a number of fronts and within many circuits surrounding FCA jurisprudence.

Looking ahead at 2019 with FCA enforcement in a transitional period, the report’s authors explore several issues warranting increased scrutiny, including:

  • Supreme Court rulings clarifying the appropriate materiality standard, the circumstances in which government knowledge will defeat FCA liability, and FCA statute of limitations.
  • An Eleventh Circuit ruling impacting whether statements of clinical judgment and other medical and scientific opinions are actionable.
  • A distinct trend for courts to award traditional “benefit of the bargain” damages, rejecting the more expansive “tainted claims” measure of damages advocated by the DOJ.

In addition to the report, the authors will also host a five-part series of podcast discussions providing additional details and their thoughts on select chapters of the report. The first podcast will be released on January 29 and continue rolling out on a weekly basis.

False Claims Act: 2018 and the road ahead was authored by Hogan Lovells lawyers Karla Aghedo, David Bastian, Marisa Cruz-Glaudemans, Jonathan Diesenhaus, Ginny Gibson, Adrienne Gittens, Gejaa Gobena, Emily Lyons, Julia McLetchie, Justin O’Brien, Peter Spivack, Mike Theis, and Becky Umhofer, with contributions from a host of additional lawyers.

To download a copy of the report, click here.

About Hogan Lovells

Hogan Lovells is a leading global legal practice providing business-oriented legal advice and high-quality service across its exceptional breadth of practices to clients around the world.

“Hogan Lovells” or the “firm” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP. For more information, see www.hoganlovells.com.

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