Cybersecurity and False Claims Act Risk - Key Takeaways from Robert Silvers and Amy Kossak

Robert Silvers, co-chair of Ropes & Gray's national security practice and member of the data, privacy & cybersecurity practice, and Amy Kossak, partner in the firm's litigation & enforcement and Chambers Band 1 ranked False Claims Act (FCA) practices, recently led a discussion on how the Department of Justice’s Civil Cyber-Fraud Initiative is reshaping FCA exposure for organizations, particularly research institutions and health care & life sciences companies.

Rob and Amy outlined how the DOJ is using the FCA to pursue alleged misrepresentations about cybersecurity features, incomplete adherence to contract- or grant-based security requirements, and failures to monitor or report incidents, underscoring that cybersecurity and digital health remain core targets for enforcement.

Drawing on recent matters, Rob and Amy highlighted a series of notable settlements that illustrate that DOJ intervention can proceed even without a data breach when contractual standards and representations are not met, and they underscored that partial measures are unlikely to avert scrutiny.

Looking ahead, the speakers noted that qui tam relators and their attorneys are sophisticated and remain active in this arena, and that the DOJ has signaled ongoing focus on cases where organizations knowingly take cybersecurity risks or fail to understand their cybersecurity obligations.

Amy and Rob closed with a practical playbook: map what your organization represents to the government about cybersecurity; ensure feasibility with technical teams; stay current on NIST, HIPAA, DFARS/FAR, and related frameworks; build processes for reporting, whistleblower handling, and incident response; train personnel; and, if a potential issue is discovered, consult counsel to assess remediation and the risks and benefits of voluntary disclosure. As they emphasized, strong, proactive compliance is nearly always less costly than managing the aftermath of noncompliance, and timely, well-counseled cooperation can reduce penalties where disclosure is warranted.