False Claims Act Insights

Jonathan Porter
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False Claims Act Insights

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. MAR 17

    Emptying Our FCA Notebook: A Summary of Recent FCA-Related Developments

    Host Jonathan Porter welcomes back to the show Husch Blackwell litigator Tanner Cook to discuss an assortment of recent False Claims Act-related legal and policy developments. A U.S. Supreme Court FCA decision, a rare FCA jury trial result, and a growing circuit court split—Episode 21 covers all of these developments and more. The discussion begins with the February Supreme Court unanimous decision in Wisconsin Bell that clarified important concepts surrounding the definition of a claim under the FCA. While a victory for the whistleblower, the decision was a narrow one, leaving some important questions untouched, including the constitutionality of the FCA’s qui tam provisions. From there, the conversation pivots to a First Circuit decision in United States v. Regeneron Pharmaceuticals that reads into FCA enforcement a “but-for” causation standard, widening a circuit split on the causation issue. The episode then covers a big defense win for a Medicare Advantage plan accused of making reverse false claims. Finally, the episode discusses a new memorandum from Attorney General Pam Bondi that narrows FCA enforcement, before concluding with a discussion of the Supervalu trial and its implications for FCA enforcement.

    33 min

  2. MAR 3

    Can DE&I Initiatives Lead to Potential False Claims Act Liability?

    Host Jonathan Porter welcomes to the show Michael Schrier, a Washington-based partner in Husch Blackwell’s Government Contracts practice, to discuss a recent executive order (EO) issued by President Donald Trump that could, if it survives legal scrutiny, introduce a new category of False Claims Act (FCA) liability to government contractors. Jonathan and Michael kick off the discussion with a brief overview of the historical context surrounding President Trump’s EO, including the Lyndon Johnson-era EO that it seeks to displace. For decades, federal contractors and subcontractors had to affirmatively ensure that employment practices are non-discriminatory against any person based on race, ethnicity, sex, national origin, or religion. Through executive action, the Trump administration has revoked this framework and created new requirements, including a prohibition against enforcing affirmative action in government contracts and certifications from contractors and grant recipients that they do not operate DE&I programs that violate federal anti-discrimination laws. As Jonathan and Michael discuss, the new EO is not without its legal challenges. On February 21, 2025, a federal judge issued a 63-page memorandum opinion and a nationwide preliminary injunction prohibiting the federal government from enforcing some of the EO’s key provisions, offering temporary relief to contractors, grant recipients, and private employers who are concerned that they will be a target of administration efforts to search out and potentially prosecute “illegal DEI.” How does this new EO—and the pending litigation attached to it—intersect with the FCA? Jonathan and Michael explore how the EO and its express reference to the FCA set in motion the potential for whistleblower claims pertaining to the operation of certain DE&I programs, but the court-imposed stay has created limbo as to the EO’s legality. The conversation turns to consider how contractors should approach new and existing federal government contracts in light of these developments, including the uneasy relationship between federal and state-level laws and contracts that could have contradictory requirements, setting up a Kafkaesque dilemma for compliance teams. Jonathan and Michael wrap up the conversation by exploring how the new EO complicates compliance with various other government contract requirements, some of which are statutory in nature, such as the Small Business Administration’s 8(a) program, a federal contracting and training program for small business owners who are socially and economically disadvantaged.

    21 min

  3. FEB 18

    Some FCA Whistles Are Louder Than Others

    Host Jonathan Porter welcomes Abe Souza, a new member of Husch Blackwell’s White Collar, Internal Investigations, & Compliance team, to the podcast to discuss newly released Department of Justice data regarding qui tam litigation, as well as DOJ’s False Claims Act priorities and best practices for defusing FCA investigations. There was a record number of qui tam lawsuits filed in 2024, and while whistleblower filings hit an all-time high, DOJ’s recoveries and investigative resources have remained mostly flat, leading to a crucial question—how does DOJ decide which qui tams to pursue? Jonathan and Abe use their experience serving within DOJ to shed light on how DOJ prioritizes FCA investigations. The discussion touches on the time-management aspects of an Assistant U.S. Attorney’s job and how these time limitations force AUSAs to focus on cases where there is a potential to secure a significant settlement or judgment and where the underlying allegations detail egregious conduct accompanied by strong evidence that can be marshaled at trial. Additionally, DOJ is more apt to end an investigation when there is some evidence of a violation, but the violation was immaterial to the government’s payment decision. The conversation then shifts to explore how qui tam complaints make their way through the legal system and how defendants can best defend these types of investigations. There is often a substantial degree of investigative activity already ongoing when defendants learn of an FCA investigation, usually via a civil investigative demand. Jonathan and Abe discuss the importance of the tone of initial and subsequent communications between defendants and the government, as they can play an important role in whether the government ultimately elects to join the lawsuit. While not dispositive, declinations are hugely influential, as many whistleblowers will voluntarily dismiss FCA actions if the government decides not to join the suit. Jonathan and Abe explain the inflection points of qui tam litigation and how DOJ approaches declination and dismissal requests based on how the case is proceeding. Jonathan and Abe also cover what happens in qui tam cases after DOJ declines to join a lawsuit and how defendants can manage litigation risk in these instances.

    39 min

  4. FEB 4

    How Tariffs Can Increase Whistleblower Activity and Associated FCA Liability

    Host Jonathan Porter welcomes Husch Blackwell partner Bob Romashko to the show to discuss an emerging area of False Claims Act liability—tariffs. True to his campaign promises to impose additional tariffs on major U.S. trading partners, President Trump has been active early in his second term wielding the threat of tariffs against friend and foe alike. As the tariff regime potentially expands, so do the risks posed by whistleblowers who could benefit from alleging violations of trade law. Jonathan and Bob summarize at a high level the tariff system and how its regulatory framework creates the potential for FCA liability. They explore how allegations of FCA violations often take the form of reverse false claims, which concern efforts to fraudulently withhold monies owed to the government, such as failing to disclose or falsely representing an obligation. In the trade context, these disclosures can be complex, especially as the tariff regime covers general tariffs, product-specific tariffs, and country-of-origin tariffs, each with very different classifications and definitions. Jonathan and Bob explore in depth some issues associated with tariff-related FCA litigation that are unusual and worth considering. More so than the typical healthcare or defense industry FCA litigation, tariff-related FCA cases are often filed by relators who are also business competitors, rather than “insiders” such as employees. This has important implications, especially given that the FCA is not a strict liability statute. Jonathan and Bob discuss recent “textbook” cases to demonstrate how honest mistakes can put a company at risk, as the costs associated with protracted litigation can compel companies to settle, even in the absence of a knowing violation. Jonathan and Bob also explore the federal district court judiciary’s unfamiliarity with some forms of trade-related litigation, as customs penalty cases are typically handled by the U.S. Court of International Trade. Jonathan and Bob conclude the episode with a discussion of what companies that work with importers need to know about FCA enforcement. Drawing from a recent FCA lawsuit, they explore the elements required to defend against relator claims and how those impact third-party participants, including warehousers, shippers, and others involved in the supply chain.

    40 min

  5. JAN 13

    Is DOJ Allowed to Share Privileged Documents with Whistleblowers in FCA Disputes?

    Host Jonathan Porter welcomes Husch Blackwell partner Kip Randall back to the program to dig deeper into Omni Healthcare, Inc. et al v. MD Spine Solutions LLC et al., a False Claims Act litigation in which the defendant inadvertently waived privilege by sharing documents with the U.S. government, documents that later found their way to the whistleblower.

    29 min

  6. 12/30/2024

    Swamp Things: A Post-Election Look at DOJ’s False Claims Act Enforcement, Part II

    Host Jonathan Porter welcomes Husch Blackwell partner Cormac Connor back to the show for the second part of a two-part conversation exploring the 2024 U.S. presidential election’s potential impact on how the Department of Justice approaches the enforcement and prosecution of corporate crime, particularly violations of the False Claims Act (FCA).

    28 min

  7. 12/16/2024

    Swamp Things: A Post-Election Look at DOJ’s False Claims Act Enforcement, Part I

    Host Jonathan Porter welcomes Husch Blackwell partner Cormac Connor to the show for the first part of a two-part conversation exploring the 2024 U.S. presidential election’s potential impact on how the Department of Justice approaches the enforcement and prosecution of corporate crime, particularly violations of the False Claims Act (FCA).

    26 min

  8. 12/02/2024

    How a Marine Fisheries Dispute Opened an FCA Can of Worms

    Host Jonathan Porter welcomes Husch Blackwell litigator Tanner Cook to discuss how the U.S. Supreme Court’s Loper Bright decision from earlier this year could have a major influence on False Claims Act litigation.

    27 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
      21
    • Rating
      Clean
    • Copyright
      © 2024 Copyright Husch Blackwell
    • Show Website
      False Claims Act Insights

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