Litigation & Enforcement Attorneys Discuss Novel FCA Decision

On Monday, U.S. District Judge Kathryn Kimball Mizelle ruled that qui tam relators, who have been allowed to file lawsuits under the False Claims Act, are essentially acting as "officers of the United States," and thereby violating the U.S. Constitution's Appointments Clause requiring such officers to be appointed by the president, a court or the head of a federal department.

Litigation & enforcement partners Amy Kossak and Andrew O’Connor discussed the ruling with Law360. If the Supreme Court does find the qui tam clause as it currently stands unconstitutional, justices may find a compromise and opt to rein in whistleblower suits without necessarily eliminating them, Amy said. "There may remain a distinction between intervened qui tam [cases] and declined ones," she said, referring to whistleblower cases where the government later chooses to intervene to file its own complaint.

Andrew said that the pursuit of novel and untested theories of FCA liability may drop off as the government sticks to more obvious, easier-to-prove cases of fraud in order to maximize use of its limited resources.

"That's not to say that DOJ is not able to pursue cases that are on the cutting-edge, but I do think historically … we've seen a lot of the innovation come from the relators bar," he said.