False Claims Act Insights

Jonathan Porter
  • 5.0 (4)
  • BUSINESS
  • UPDATED MONTHLY

False Claims Act Insights explores how the U.S. government uses the False Claims Act (FCA) to stamp out fraud and corruption in government contracts. Each episode, Jonathan Porter, a former Assistant U.S. Attorney and currently a partner with Husch Blackwell’s White Collar, Internal Investigations & Compliance team, chats with preeminent guests to provide listeners with an up-to-date understanding of the FCA, including trends in recent litigation and compliance efforts. The show also explores those elements of the FCA that make it a uniquely powerful tool for the government against private business, including the Act’s utilization of whistleblowers and its qui tam provisions, as well as evolving theories of FCA liability that expand the boundaries of what the Act covers, including cybersecurity and so-called reverse FCA claims.

  1. OCT 8

    Recent Federal Executive Actions Place Anti-Discrimination Within the FCA’s Orbit

    Host Jonathan Porter welcomes Julia Kopcienski to the podcast to discuss a new Husch Blackwell report, “Legal Perspectives on Executive Order 14173, DEI, and the False Claims Act,” that explores the Trump administration’s demonstrated commitment to enforcing federal anti-discrimination laws through novel and varied mechanisms. The 30-page report was written by a multidisciplinary team of lawyers, drawing from the firm’s Government Contracts; White Collar, Internal Investigations, and Compliance; Labor & Employment; and Higher Education practice groups. In it, readers will get practical perspectives on how to (1) understand and recognize what employment, procurement, and educational policies and practices may now be considered “illegal;” (2) identify issues for self-review and/or assistance from outside counsel; and (3) be aware of and prepare for novel federal civil and criminal enforcement mechanisms. The conversation discusses how the Trump administration’s use of the FCA and qui tam litigation departs from prior anti-discrimination enforcement efforts and then pivots to consider some of the legal liabilities faced by government contractors vis-à-vis their DEI initiatives. Jonathan and Julia unpack how express certifications work in this context and what contractors—and their legal counsel—need to think about as enforcement in this area ramps up. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Julia Kopcienski | Full Biography Julia works on a broad range of white collar and government contracts matters, supporting clients through the entire contracting lifecycle, from bidding, award, and administration to potential federal investigation and prosecution. Julia advises clients on FAR and DFARS compliance and contract administration matters, including complex claims and disputes. She defends contractors, commercial firms, and individuals against allegations of False Claims Act violations, healthcare fraud, government contracting fraud, accounting and tax fraud, securities fraud, FINRA and SEC regulatory violations, racketeering, wire and mail fraud, money laundering, and other wrongdoing. She has represented clients before DOJ headquarters and regional offices, the SEC, FINRA, state Attorney Generals’ offices, and other regulatory and enforcement agencies.

    21 min

  2. SEP 8

    Be Careful What You Wish For: HHS-OIG Advisory Opinions

    Host Jonathan Porter welcomes Brett McNeal and David Traskey to the show to discuss challenges associated with interpreting agency guidance—particularly advisory opinions from the Department of Health and Human Services’ Office of Inspector General (HHS-OIG)—as it relates to regulatory compliance in the healthcare industry. The conversation begins with a review of “first things,” or the short list of fundamentals that figure prominently in the regulatory setting, such as the origination and generation of business and whether federal money is involved in a service or product area.  Advisory opinions often speak to these fundamentals, but the opinions are not always crystal clear. The conversation discusses how HHS-OIG advisory opinions are constructed, the statutory mandates that call them into existence, and the purposes they serve. While the opinions are legally binding on HHS and the parties that request them, their publication (in redacted form) can create issues owing to their highly qualified nature. Advisory opinions sometimes only hint broadly at how healthcare law might apply to any given situation, generating as many questions as they answer. So how should healthcare providers approach HHS-OIG advisory opinions? The short answer is Very Carefully. Healthcare industry entities should consider their options fully prior to requesting advisory opinions and think through why it is they want the opinion and what the implications of the opinion could be. Jonathan, Brett, and David impart some practical tips on how to lead that conversation and analysis, offer thoughts on how the regulatory framework could be improved, and predict where healthcare fraud and abuse regulation could be heading. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Brett McNeal | Full Biography Brett serves as the Chief Legal Officer of CAN Community Health, a leading operator of healthcare clinics. His deep experience with healthcare law is principally in the area of fraud and abuse, including the Stark Law, the Anti-Kickback Statute, and the False Claims Act. He also regularly provides advice and guidance on a range of regulatory issues and matters impacting the healthcare industry, including Medicare and Medicaid program and reimbursement requirements, the 340B Drug Pricing Program, HIPAA, and provider scope of practice issues. David Traskey | Full Biography David co-leads the Washington, DC office of the law firm Garfunkel Wild and advises individuals and entities involved in government investigations, guides clients on corporate compliance and governance matters, and litigates civil and white-collar health care fraud cases. Prior to entering private practice, David served as Senior Counsel with the United States Department of Health and Human Services (HHS), Office of Inspector General (OIG).

    26 min

  3. AUG 25

    An FCA Perspective on Artificial Intelligence in the Healthcare Industry

    Host Jonathan Porter welcomes the Coker Group’s Andy Sobczyk to the podcast to discuss the risks and opportunities associated with implementing artificial intelligence (AI) solutions in the healthcare industry. The conversation kicks off with a consideration of AI in the area of clinical decision support, where AI platforms can potentially enhance a healthcare provider’s delivery of care. Jonathan and Andy then consider patient-facing care systems powered by AI, such as chatbots, and how these systems have to be evaluated according to the scope of information the chatbot is authorized to provide and the escalation guidelines put in place. The conversation also covers the application of AI to the drafting of clinical notes and the huge time-saving possibilities associated with ambient listening devices coupled with AI platforms. Jonathan and Andy also address the challenges of patient flow and how AI might help healthcare providers optimize workflows and better match supply with demand for healthcare services. Finally, Jonathan and Andy talk about billing, considering the risks and opportunities healthcare providers face in implementing AI solutions to optimize the billing process. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Andy Sobczyk | Full Biography Andy is a vice president for Coker Group's physician services and finance, operations, and strategy divisions. He partners with clients to address challenges involving operational efficiency, organizational structure, physician alignment strategy, financial stability, revenue cycle management, and leadership coaching and development. He also supports compensation valuation work, compensation plan redesign, and strategic business planning.

    33 min

  4. AUG 11

    Beyond Adversarialism: How to Steer FCA Investigations

    Host Jonathan Porter welcomes Husch Blackwell partner Todd Gee to the program to discuss why establishing a good working relationship with the Department of Justice is important and how to accomplish that while remaining a fierce advocate for your client. The conversation begins with a short recap of DOJ structure and the lines of supervision between line attorneys—assistant U.S. Attorneys and Main Justice trial attorneys—and their supervisors and what role Main Justice has, if any, in the matter. In the context of False Claims Act cases, AUSAs often enjoy wide latitude to conduct the investigation; however, there are a few inflection points, like the issuance of civil investigative demands or settlement talks, where attorneys further up the line may have more input, and these in turn are decision points in time for defense counsel to consider. Jonathan and Todd also discuss the importance of understanding why DOJ attorneys move aggressively on some matters while allowing others to languish. The conversation includes some key practical tips for how to work with line attorneys at DOJ, and at the top of the list is personal comportment—don’t be a jerk!—when dealing with DOJ. Additionally, storytelling and providing DOJ with important context can help shape line attorneys’ points of view in handling FCA investigations where nuance and complexity reign supreme.  Jonathan and Todd also take on instances of needing to elevate an issue over the head of line attorneys to the supervisor level. As one can imagine, this decision is fraught with risk, as mishandling a supervisor meeting can ruin relationships and make it harder to secure favorable settlements or case dispositions. One solid tip for practitioners: never appeal above the line attorney’s head without letting him or her know ahead of time in a respectful manner. An appropriately delicate touch is needed when appealing investigative decisions; former DOJ personnel often understand the tact required and the processes involved. There are often solid reasons for appealing investigative decisions; however, the way it is done can be hugely impactful. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Todd Gee | Full Biography Based in Washington, Todd is a former United States Attorney and experienced trial lawyer, representing businesses and individuals in connection with a range of criminal and civil matters, including government and internal investigations, litigation, and regulatory compliance. With years of experience as a federal prosecutor and counsel to a congressional committee, Todd is well-positioned to help clients navigate high-stakes and sensitive issues. He specializes in guiding clients through multifaceted investigations involving overlapping risks posed by criminal investigators, civil litigants, regulatory agencies, or congressional inquiries.

    27 min

  5. JUL 28

    The Mathematics of Nuclear FCA Verdicts

    Host Jonathan Porter welcomes back to the show Husch Blackwell attorney Tanner Cook to talk about the trial penalties associated with False Claims Act (FCA) litigation. The conversation begins with a short summary of how damages are tallied and awarded in the FCA context and how these can quickly accrue into an enormous sum of money. Jonathan and Tanner then dive into why FCA trials are the exception rather than the rule and the central role trial penalties play in the way most defendants assess risk. By statute, the FCA imposes treble damages and per-false claim damages, the latter of which government prosecutors rarely seek during pre-trial settlement negotiations, greatly reducing a defendant’s exposure to risk and making settlements the preferred vehicle for resolving disputes. While FCA trial penalties can be large, the U.S. Constitution’s Excessive Fines Clause sometimes serves as a brake on penalties. As Tanner explains, constitutional arguments relying on the Excessive Fines Clause have gained some traction in various courts around the country, providing defendants with a means to combat the FCA’s statutory requirements. Jonathan and Tanner then pivot to a recent FCA litigation (United States of America ex rel. Uri Bassan et al. v. Omnicare Inc.) that went to trial where the defendants lost and examine how trial penalties were handled by the court. Had the judge followed the letter of the law in the case under discussion, the resulting penalties would have equaled about $27 billion, roughly a third of the defendants’ market capitalization. Jonathan and Tanner discuss why the government declined to pursue the full damages and how the Excessive Fines Clause and the Due Process Clause figure into the way judges and counsel approached the matter. Jonathan and Tanner conclude the discussion on how judges doing the math associated with total damages and the number of false claims are wildly inconsistent in the approaches they use, making it very difficult for defendants to assess risk prior to trial. Jonathan and Tanner then highlight some best practices for risk management in the FCA litigation context. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Tanner Cook | Full Biography Based in St, Louis, Tanner is a member of Husch Blackwell’s Commercial Litigation group and focuses on consumer class actions, antitrust litigation, and multidistrict litigation. Tanner frequently takes the lead in drafting critical pretrial briefs, including dispositive motions and evidentiary challenges. In addition to his commercial litigation practice, Tanner regularly assists on white collar defense matters, especially in the False Claims Act context. Tanner has significant experience defending companies from qui tam whistleblower suits at every stage of the litigation process, combining his deep substantive knowledge of the law with creative defense strategies. Tanner served as law clerk at the U.S. District Court, Eastern District of Missouri, for Judge Sarah E. Pitlyk.

    23 min

  6. JUN 30

    Bitter Pills: DOJ Targets Pharmacies for FCA Enforcement

    Host Jonathan Porter welcomes back to the show Husch Blackwell attorney Abe Souza to discuss False Claims Act (FCA) enforcement in the pharmacy context. Pharmacies face multiple pressures, from disruptive online enterprises that threaten brick-and-mortar profitability to heightened regulatory vigilance concerning opioids. As pharmacies contemplate how to tweak business models to operate more profitably, the risk of violating FCA provisions is something that compliance programs must consider carefully. Our discussion kicks off with DOJ’s focus on opioids and its use of the FCA to accomplish its policy ends. As Abe explains, the FCA’s civil penalty model is sometimes preferred by prosecutors due to its clarity and its ability to generate civil penalties large enough to punish violators and deter future violations. Jonathan and Abe then explore two recent litigations involving FCA allegations against pharmacies to draw out some practical takeaways for pharmacy operations. The conversation then pivots to consider fraudulent claims uncovered by the government, particularly concerning drugs that are, contrary to the claims filed, not dispensed. Government investigators have grown adept at using inventory records and supply chain analysis to reveal potential false claims, providing a relatively easy and scalable enforcement model for U.S. Attorneys to use in FCA cases. To conclude, Jonathan and Abe discuss the hazards of aggressive marketing campaigns involving high-reimbursement drugs and discuss a recent criminal enforcement against a Kentucky pharmacist involving medicated pads, highlighting some practical tips for pharmacy operators to consider. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Abe Souza | Full Biography Abe regularly represents clients embroiled in internal and government investigations, as well as in government enforcement actions. Abe also represents clients in complex business disputes and commercial litigation matters, including those involving antitrust and class action claims. Prior to joining Husch Blackwell, Abe served for nearly five years as an Assistant U.S. Attorney in the Northern District of Illinois where he worked directly with FBI agents and other investigators and served as a first-chair trial lawyer. Abe began his legal career as a law clerk for the Honorable Joan Humphrey Lefkow of the U.S. District Court for the Northern District of Illinois.

    29 min

  7. JUN 17

    Will Recent Leadership Changes Lead to FCA Enforcement Policy Changes?

    Host Jonathan Porter welcomes to the show Husch Blackwell partner Brian Flood to discuss how newly appointed personnel in the Trump administration could impact False Claims Act (FCA) enforcement for the remainder of 2025 and beyond.  Jonathan and Brian begin by discussing the departure from the Department of Justice of Michael Granston, the former deputy assistant attorney general for the Commercial Litigation Branch. Over nearly 30 years, Granston had a strong influence on the development of DOJ’s approach to qui tam litigations and the FCA. His replacement, Brenna Jenny, rejoins government after a stint in private practice. The conversation explores how her approach to FCA enforcement may be informed by her real-world experience representing defendants, particularly around the notion of dismissal of declined qui tams and “but for” causation, the latter of which is the subject of a circuit split and is hotly contested in the FCA space. Jonathan and Brian then pivot to consider the implications arising from the January 2025 dismissal of Christi Grimm, an inspector general (IG) with the Department of Health and Human Services. Our conversation touches on how the IG’s role intersects with FCA enforcement and IG’s have traditionally maintained a delicate balance between developing excellent working relationships with private industry while being vigilant in their oversight role. Jonathan and Brian also discuss the potential for wider ranging impacts within HHS where a new cadre of leadership could question the larger enforcement structure as it relates to healthcare, which could lead to uncertainty regarding the efficacy of prior regulatory guidance. The conversation wraps up with some broad thoughts on the direction of healthcare regulatory enforcement priorities. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Brian Flood | Full Biography Brian views government reviews, audits and investigations as unexpected issues that need quick intervention to minimize damage and move clients forward. With a focus on healthcare industry enterprises, Brian advises clients on the strategy and tactics needed to achieve the most favorable resolution of regulatory compliance investigations and enforcement actions. He also represents clients facing civil and criminal charges of waste, abuse, misconduct, and fraud in federal and state courts. Brian brings a comprehensive understanding of dispute resolution and government investigations to his clients, having served for several years as a prosecutor, consultant and regulator before entering private practice. He served nearly a decade as a prosecutor in banking, insurance, securities, healthcare, organized crime, general crimes and white collar crime. He was an Inspector General for the Health and Human Services system of Texas and was appointed to the Centers for Medicare & Medicaid Services Medicaid Integrity Program Advisory Committee. He also served as a consultant for a Big Four accounting firm and as an international consultant on healthcare, the Foreign Corrupt Practices Act (FCPA) and other regulatory and compliance industry matters.

    22 min

  8. MAY 20

    How Payment Suspensions Can Impact FCA Litigation

    Host Jonathan Porter welcomes to the show Husch Blackwell partner Bryan Nowicki, a Madison-based member of the firm’s Healthcare group, to discuss payment suspensions involving the Centers for Medicare & Medicaid Services (CMS) and various state-level agencies, especially in the context of a government investigation. Even when temporary, these payment suspensions—literally, a turning off of government funds and reimbursements—can have severe consequences for healthcare enterprises whose operations depend heavily on an uninterrupted flow of funds. The overpayment and allegation of fraud standards that govern payment suspensions are somewhat erratic—or at least, erratically imposed—creating added concern for healthcare providers, especially in light of recent CMS comments that payment suspensions could be used more broadly going forward. Furthermore, the standards, such as they are, are fairly easy for the government to meet. In the healthcare context, where decisions based on clinical judgment often form the subject matter of government investigations, the poorly defined standards for payment suspensions can lead to crippling uncertainty for organizations that lack a plan for how to mitigate the consequences.  Jonathan and Bryan discuss the typical process and scope of payment suspensions—whether the suspension involves all payments to an organization or whether it is limited to the issue under review—and how healthcare providers can develop strategies to resolve payment suspensions. The conversation pivots to consider case law and what lessons can be derived from recent litigation. Jonathan Porter | Full Biography Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law. Bryan Nowicki | Full Biography Bryan has more than 20 years of litigation and regulatory experience, assisting clients on a nationwide basis with complex litigation, compliance, and business matters with a particular focus on hospice, home health agencies, palliative care organizations, hospitals, and skilled nursing homes. Working closely with clients, he develops practical strategies and remediation when they face issues including state and federal investigations, whistleblower complaints, audits, and federal fraud and abuse claims, among other areas.

    31 min
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About

False Claims Act Insights explores how the U.S. government uses the False Claims Act (FCA) to stamp out fraud and corruption in government contracts. Each episode, Jonathan Porter, a former Assistant U.S. Attorney and currently a partner with Husch Blackwell’s White Collar, Internal Investigations & Compliance team, chats with preeminent guests to provide listeners with an up-to-date understanding of the FCA, including trends in recent litigation and compliance efforts. The show also explores those elements of the FCA that make it a uniquely powerful tool for the government against private business, including the Act’s utilization of whistleblowers and its qui tam provisions, as well as evolving theories of FCA liability that expand the boundaries of what the Act covers, including cybersecurity and so-called reverse FCA claims.

Information

  • Creator
    Jonathan Porter
  • Years Active
    2024 - 2025
  • Episodes
    32
  • Rating
    Clean
  • Copyright
    © 2024 Copyright Husch Blackwell
  • Show Website
    False Claims Act Insights

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