Mid-2024 FCA Enforcement and Litigation Trends to Watch

George B. Breen, Daniel C. Fundakowski, and Richard W. Westling, Members of the Firm in the Health Care & Life Sciences practice, co-authored an article in Law360, titled “Mid-2024 FCA Enforcement and Litigation Trends to Watch.” (Read the full version – subscription required.)

Following is an excerpt (see below to download the full version in PDF format):

This article addresses False Claims Act trends and notable enforcement efforts from 2023 through midyear 2024 and highlights key developments to watch during the remainder of this year.

DOJ Fiscal Year 2023 FCA Recoveries

According to U.S. Department of Justice statistics released on Feb. 22, the number of settlements, judgments and civil investigative demands under the FCA was the highest in history for the fiscal year ending Sept. 30, 2023.

The same day, DOJ Principal Deputy Assistant Attorney General Brian M. Boynton reported at the Federal Bar Association's qui tam conference that the U.S. was a party to 543 FCA settlements and judgments in fiscal year 2023 — the most ever in a single year and a 54% increase from fiscal year 2022.

Boynton also announced that the DOJ set a new record for issuing civil investigative demands; the Fraud Section issued 1,504 civil investigative demands for documents, interrogatory responses and testimony in fiscal year 2023.

While the $2.68 billion in total recoveries continues an upward trend from the $2.24 billion reported in fiscal year 2022, a primary takeaway is the focus on DOJ-driven investigations.

In fiscal year 2023, more money was recovered from qui tam cases in which the U.S. intervened or prosecuted (nearly $1.9 billion) than in cases where the government declined to intervene ($442 million) — a near inverse from fiscal year 2022.

As for new cases, whistleblowers filed 712 qui tam suits in fiscal year 2023 and received over $349 million — a considerable decrease from the $496 million in fiscal year 2022. DOJ-initiated cases also increased substantially, with 500 new matters in fiscal year 2023, up from 305 in fiscal year 2022.

With fiscal year 2023 in the books, recoveries under the FCA since the 1986 amendments now exceed $75 billion and have exceeded $2 billion annually for 15 consecutive years.