Prosecuting and Defending False Claims Act / Whistleblower Allegations

Representation for Entities and Individuals

The False Claims Act (FCA), codified at 31 U.S.C. §§ 3729 – 3733, is designed to prevent and address fraud committed against the United States. Under the FCA, both organizations and individuals can be held liable if they submit false or fraudulent claims for payment to the government. Allegations under this law can lead to complex legal proceedings, significant financial consequences—including the risk of treble damages and other costs—and may result in lasting reputational damage.

KCPM is experienced representing both organizations and individuals accused of violating the False Claims Act. We have experienced federal litigators and provide strategic guidance and strong advocacy at every stage of the process. We understand the sensitive nature of FCA cases and are committed to pursuing the most favorable outcomes for our clients.

Legal Strategies for FCA Defense

Successfully defending against FCA claims often involves several key legal strategies. Defense counsel may challenge whether there was any actual intent to commit fraud, dispute the materiality of the alleged false statements or representations that resulted in government payment, or assert defenses based on the statute of limitations. In cases brought under the FCA’s Qui Tam provisions—where a whistleblower (also called a relator) initiates the lawsuit—it is important to evaluate whether the Public Disclosure Bar applies. This bar requires dismissal if the allegations are based on certain publicly available information such as government reports, disclosure in the media, or government participation in legal action concerning the same acts or transactions at issue. However, the public disclosure bar can be overcome if the whistleblower is the original source or the government objects to dismissal. There have also been growing Constitutional challenges to suits brought under the FCA’s Qui Tam provisions where attorneys have argued that a citizen should not be able to sue on behalf of the federal government.

There are other provisions in the False Claims Act that can provide protections to targets of a FCA suit. Specifically, there are attorney fee shifting provisions that can result in attorney fees being awarded against a relator if the government does not intervene in a suit that is deemed frivolous or brought for the purpose of harassment. In cases where the government does intervene, a successful defendant can also obtain an attorney fees award.

A thorough understanding and application of these defenses are crucial to achieving a positive result in FCA litigation.

Scope of FCA Enforcement

FCA enforcement actions can arise from any type of alleged fraud against the federal government, including issues related to health care, government contracts, failure to comply with contractual cybersecurity requirements, and violations associated with the Payment Protection Program (PPP). In fiscal year 2024, the Department of Justice reported there was a historic number of FCA filings, the majority of which were initiated by relators or whistleblowers, and reported recoveries totaling $2.9 billion.