Host Jonathan Porter welcomes Husch Blackwell’s Lorinda Holloway to explore settlements in the context of False Claims Act (FCA) litigation. Jonathan and Lorinda discuss the differences between FCA settlements and those typically seen in commercial litigation. They explore what is meant by “covered conduct” and why broad releases are rarely seen in FCA settlements. The presence of whistleblowers, or relators, is another distinguishing feature of FCA litigation, adding another layer of complexity to FCA settlement negotiations, especially around attorneys’ fees which the FCA allows whistleblowers to demand as part of a recovery. 

Jonathan and Lorinda also take on the crucial issue of how FCA settlement discussions need to account for the defendant’s ongoing business objectives and its ability to continue doing business with the government. The Department of Justice often has a tight focus on FCA litigation, leaving parallel administrative issues or disputes to its agency clients; however, defendants should seek to gain as much clarity as possible on their ability to operate as a contractor and make those inquiries part of the larger settlement negotiation, especially as it might impact any admission of liability as part of the settlement.

Finally, Jonathan and Lorinda discuss the concept of pocket judgments, also called spring-loaded judgments, which often involves defendants that have an inability to pay the judgment in a bullet payment. Pocket judgments usually involve something akin to an installment plan, and typically, defendants also enter into a consent judgment for a higher sum of money that can be invoked by the government if the defendant fails to abide by the installment plan. 

Jonathan Porter Biography

Full Biography

Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.

Lorinda Holloway Biography

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Based in Austin, Texas, Lorinda is a member of the Husch Blackwell’s Healthcare, Life Sciences and Education industry team and counsels clients on matters concerning government investigations and disputes. For more than 25 years, she has advised and represented clients in and out of the courtroom with a particular focus on the healthcare industry, including False Claims Act, Texas Medicaid Fraud Prevention Act, and qui tam related investigations and lawsuits, audits, and in business disputes in state and federal court. Her experience in healthcare has also led to the education field, including a focus on the legal challenges faced in academic medicine.