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David T. Fischer

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David Fischer is special counsel in the Governmental Practice in the firm's Washington, D.C. office and a leader of its Organizational Integrity Group.

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Today, the Eleventh Circuit heard oral argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, a case addressing the constitutionality of qui tam relators that has drawn national attention. At stake is the future of qui tam whistleblower actions under the FCA—a statutory scheme that has, for decades, empowered private individuals to bring fraud claims on behalf of the federal government.

Continue Reading Eleventh Circuit Hears Oral Arguments in High-Profile Challenge to Constitutionality of The False Claim Act’s Qui Tam Provision

The inexorable expansion of the False Claims Act (“FCA”) to cover virtually all types of cybersecurity breaches and violations – to include allegedly poor practices and failure to fully adhere to security controls – continues. At one time, an organization might have thought that it was unlikely to face a potential FCA investigation and litigation relating to its cybersecurity practices. That day is long past. Two recent FCA settlements illustrate the expansion: one is the first cybersecurity FCA settlement relating to healthcare Quality System Regulations (“QSR”) and the other involves the first settlement with a defense contractor that also pulls in its private equity owner.

Continue Reading The Expanding Scope of FCA-Cybersecurity Liability

Update: On February 22, Maryland District Court Judge Adam Abelson issued a Preliminary Injunction halting the rollout and enforcement of the several provisions in the EO. Relevant here, the PI prohibits the Federal Government from requiring any contractor or grantee to make any certification required by the EO; and prohibits the Federal Government from bringing any False Claims Act enforcement action, or other enforcement action, in connection with either the proposed certification or the nine federal investigations to be proposed by each federal agency. The 63-page opinion addressed both First and Fifth Amendment implications of the EO relying, in part, on the vagueness concerns noted below. This is not a final decision on the merits, and the likelihood of additional litigation, included appeals, as well as additional actions by the Administration is highly likely.

Continue Reading The Squeeze is the Juice – Utilization of The False Claims Act in the DEI/Government Contracting Executive Order 

In the high-stakes realm of False Claims Act (FCA) litigation per-claim penalties can reach daunting levels that dwarf even treble damages. A recent ruling from the Eighth Circuit Court provides valuable guidance on the limits of penalties under the Constitution’s Excessive Fines Clause (Clause). In Grant ex rel. United States v. Zorn the Eighth Circuit provides clarity applying the Clause in FCA litigation, specifically identifying when a penalty for purely economic loss offenses might be considered excessive. Of relevance, the Court held that:

Continue Reading There Are Limits! Reining In FCA Penalties Pursuant to the Excessive Fines Clause

On June 1, 2023, the Supreme Court issued a unanimous decision holding that the scienter element of the False Claims Act (“FCA”) is met if a defendant subjectively knew his or her claims were false and submitted them anyway. See United States ex rel. Schutte v. SuperValu Inc. and United States ex rel. Proctor v. Safeway. The Court’s ruling was narrow and avoided the more challenging—and common—issues raised during oral argument (which we blogged about previously).

Continue Reading Supreme Court Clarifies that Subjective (Not Objective) Knowledge of Falsity of Claim Dictates False Claims Act Liability

Companies regularly are required to interpret ambiguous and vague regulatory provisions. Today, the United States Supreme Court heard oral arguments in a pair of consolidated cases to determine whether a defendant’s subjective interpretation of an ambiguous regulation is relevant to determining the knowledge (or scienter) element of the False Claims Act or, as the Seventh Circuit held in the case below, that once a defendant can articulate an objectively reasonable interpretation its contemporaneously held subjective belief is irrelevant to the knowledge inquiry. The issue is a significant one for both the government and relators on one side, and potential defendants on the other, as False Claims Act (FCA) liability imposes treble damages and penalties exceeding $20,000 per claim as well as relators’ attorneys’ fees and costs.

Continue Reading Supreme Court Hears Arguments on False Claims Act Scienter Standard