False Claims Act Insights

Host Jonathan Porter welcomes back to the show Husch Blackwell attorney Tanner Cook to talk about the trial penalties associated with False Claims Act (FCA) litigation. The conversation begins with a short summary of how damages are tallied and awarded in the FCA context and how these can quickly accrue into an enormous sum of money. Jonathan and Tanner then dive into why FCA trials are the exception rather than the rule and the central role trial penalties play in the way most defendants assess risk. By statute, the FCA imposes treble damages and per-false claim damages, the latter of which government prosecutors rarely seek during pre-trial settlement negotiations, greatly reducing a defendant’s exposure to risk and making settlements the preferred vehicle for resolving disputes.

While FCA trial penalties can be large, the U.S. Constitution’s Excessive Fines Clause sometimes serves as a brake on penalties. As Tanner explains, constitutional arguments relying on the Excessive Fines Clause have gained some traction in various courts around the country, providing defendants with a means to combat the FCA’s statutory requirements.

Jonathan and Tanner then pivot to a recent FCA litigation (United States of America ex rel. Uri Bassan et al. v. Omnicare Inc.) that went to trial where the defendants lost and examine how trial penalties were handled by the court. Had the judge followed the letter of the law in the case under discussion, the resulting penalties would have equaled about $27 billion, roughly a third of the defendants’ market capitalization. Jonathan and Tanner discuss why the government declined to pursue the full damages and how the Excessive Fines Clause and the Due Process Clause figure into the way judges and counsel approached the matter.

Jonathan and Tanner conclude the discussion on how judges doing the math associated with total damages and the number of false claims are wildly inconsistent in the approaches they use, making it very difficult for defendants to assess risk prior to trial. Jonathan and Tanner then highlight some best practices for risk management in the FCA litigation context.

Jonathan Porter | 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.

Tanner Cook | Full Biography

Based in St, Louis, Tanner is a member of Husch Blackwell’s Commercial Litigation group and focuses on consumer class actions, antitrust litigation, and multidistrict litigation. Tanner frequently takes the lead in drafting critical pretrial briefs, including dispositive motions and evidentiary challenges. In addition to his commercial litigation practice, Tanner regularly assists on white collar defense matters, especially in the False Claims Act context. Tanner has significant experience defending companies from qui tam whistleblower suits at every stage of the litigation process, combining his deep substantive knowledge of the law with creative defense strategies. Tanner served as law clerk at the U.S. District Court, Eastern District of Missouri, for Judge Sarah E. Pitlyk.

Host Jonathan Porter welcomes back to the show Husch Blackwell attorney Abe Souza to discuss False Claims Act (FCA) enforcement in the pharmacy context. Pharmacies face multiple pressures, from disruptive online enterprises that threaten brick-and-mortar profitability to heightened regulatory vigilance concerning opioids. As pharmacies contemplate how to tweak business models to operate more profitably, the risk of violating FCA provisions is something that compliance programs must consider carefully.

Our discussion kicks off with DOJ’s focus on opioids and its use of the FCA to accomplish its policy ends. As Abe explains, the FCA’s civil penalty model is sometimes preferred by prosecutors due to its clarity and its ability to generate civil penalties large enough to punish violators and deter future violations. Jonathan and Abe then explore two recent litigations involving FCA allegations against pharmacies to draw out some practical takeaways for pharmacy operations.

The conversation then pivots to consider fraudulent claims uncovered by the government, particularly concerning drugs that are, contrary to the claims filed, not dispensed. Government investigators have grown adept at using inventory records and supply chain analysis to reveal potential false claims, providing a relatively easy and scalable enforcement model for U.S. Attorneys to use in FCA cases.

To conclude, Jonathan and Abe discuss the hazards of aggressive marketing campaigns involving high-reimbursement drugs and discuss a recent criminal enforcement against a Kentucky pharmacist involving medicated pads, highlighting some practical tips for pharmacy operators to consider.

Jonathan Porter | 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.

Abe Souza | Full Biography

Abe regularly represents clients embroiled in internal and government investigations, as well as in government enforcement actions. Abe also represents clients in complex business disputes and commercial litigation matters, including those involving antitrust and class action claims. Prior to joining Husch Blackwell, Abe served for nearly five years as an Assistant U.S. Attorney in the Northern District of Illinois where he worked directly with FBI agents and other investigators and served as a first-chair trial lawyer. Abe began his legal career as a law clerk for the Honorable Joan Humphrey Lefkow of the U.S. District Court for the Northern District of Illinois.

Host Jonathan Porter welcomes to the show Husch Blackwell partner Brian Flood to discuss how newly appointed personnel in the Trump administration could impact False Claims Act (FCA) enforcement for the remainder of 2025 and beyond. 

Jonathan and Brian begin by discussing the departure from the Department of Justice of Michael Granston, the former deputy assistant attorney general for the Commercial Litigation Branch. Over nearly 30 years, Granston had a strong influence on the development of DOJ’s approach to qui tam litigations and the FCA. His replacement, Brenna Jenny, rejoins government after a stint in private practice. The conversation explores how her approach to FCA enforcement may be informed by her real-world experience representing defendants, particularly around the notion of dismissal of declined qui tams and “but for” causation, the latter of which is the subject of a circuit split and is hotly contested in the FCA space.

Jonathan and Brian then pivot to consider the implications arising from the January 2025 dismissal of Christi Grimm, an inspector general (IG) with the Department of Health and Human Services. Our conversation touches on how the IG’s role intersects with FCA enforcement and IG’s have traditionally maintained a delicate balance between developing excellent working relationships with private industry while being vigilant in their oversight role. Jonathan and Brian also discuss the potential for wider ranging impacts within HHS where a new cadre of leadership could question the larger enforcement structure as it relates to healthcare, which could lead to uncertainty regarding the efficacy of prior regulatory guidance. The conversation wraps up with some broad thoughts on the direction of healthcare regulatory enforcement priorities.

Jonathan Porter | 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.

Brian Flood | Full Biography

Brian views government reviews, audits and investigations as unexpected issues that need quick intervention to minimize damage and move clients forward.

With a focus on healthcare industry enterprises, Brian advises clients on the strategy and tactics needed to achieve the most favorable resolution of regulatory compliance investigations and enforcement actions. He also represents clients facing civil and criminal charges of waste, abuse, misconduct, and fraud in federal and state courts.

Brian brings a comprehensive understanding of dispute resolution and government investigations to his clients, having served for several years as a prosecutor, consultant and regulator before entering private practice. He served nearly a decade as a prosecutor in banking, insurance, securities, healthcare, organized crime, general crimes and white collar crime. He was an Inspector General for the Health and Human Services system of Texas and was appointed to the Centers for Medicare & Medicaid Services Medicaid Integrity Program Advisory Committee. He also served as a consultant for a Big Four accounting firm and as an international consultant on healthcare, the Foreign Corrupt Practices Act (FCPA) and other regulatory and compliance industry matters.

Host Jonathan Porter welcomes to the show Husch Blackwell partner Bryan Nowicki, a Madison-based member of the firm’s Healthcare group, to discuss payment suspensions involving the Centers for Medicare & Medicaid Services (CMS) and various state-level agencies, especially in the context of a government investigation. Even when temporary, these payment suspensions—literally, a turning off of government funds and reimbursements—can have severe consequences for healthcare enterprises whose operations depend heavily on an uninterrupted flow of funds.

The overpayment and allegation of fraud standards that govern payment suspensions are somewhat erratic—or at least, erratically imposed—creating added concern for healthcare providers, especially in light of recent CMS comments that payment suspensions could be used more broadly going forward. Furthermore, the standards, such as they are, are fairly easy for the government to meet. In the healthcare context, where decisions based on clinical judgment often form the subject matter of government investigations, the poorly defined standards for payment suspensions can lead to crippling uncertainty for organizations that lack a plan for how to mitigate the consequences. 

Jonathan and Bryan discuss the typical process and scope of payment suspensions—whether the suspension involves all payments to an organization or whether it is limited to the issue under review—and how healthcare providers can develop strategies to resolve payment suspensions. The conversation pivots to consider case law and what lessons can be derived from recent litigation.

Jonathan Porter | 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.

Bryan Nowicki | Full Biography

Bryan has more than 20 years of litigation and regulatory experience, assisting clients on a nationwide basis with complex litigation, compliance, and business matters with a particular focus on hospice, home health agencies, palliative care organizations, hospitals, and skilled nursing homes. Working closely with clients, he develops practical strategies and remediation when they face issues including state and federal investigations, whistleblower complaints, audits, and federal fraud and abuse claims, among other areas.

Host Jonathan Porter welcomes to the show Husch Blackwell attorney Brandon Hall, a St. Louis-based member of the firm’s Healthcare group, to discuss how the Department of Justice’s reshuffling of priorities could lead to a greater focus on healthcare fraud enforcement. Jonathan and Brandon begin by exploring Brandon’s career prior to entering private practice, when he served as a sales representative for a medical device firm and how this background helped inform Brandon’s interest in and approach to the government’s efforts to regulate healthcare. 

The conversation then pivots to the Eliminating Kickbacks in Recovery Act (EKRA), a criminal law enacted by Congress in 2018 as part of a larger package of legislation addressing the opioid crisis. EKRA, however, has broader implications, and Jonathan and Brandon dive into how it intersects with the False Claims Act and how its willfulness provisions and lack of a right of private action have impacted enforcement. They also discuss EKRA case law that has shaped how compliance programs operate and how courts have interpreted the law’s provisions, including its unique preemption scope vis-à-vis state law and other federal statutes.

With recent reports noting redeployment of DOJ resources toward greater healthcare fraud enforcement, EKRA could emerge as a key piece of criminal law that healthcare providers need to consider.

Jonathan Porter | 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.

Brandon Hall | Full Biography

Brandon counsels clients on healthcare regulatory matters, government enforcement actions, employee benefits, and ERISA. His clients include hospitals, health systems, physicians and other providers, physician groups, pharmacies, ERISA plan fiduciaries, and healthcare private equity investors. 

Prior to his legal career, Brandon sold medical devices for a national cardiac monitoring company. He also serves as adjunct faculty at Saint Louis University School of Law’s Center for Health Law Studies, where he co-teaches the course Grassroots Policy and Advocacy, a class which works with legislators to draft and pass legislation during the spring semester by taking frequent trips to the state capital to lobby legislators and testify before various committees.

Host Jonathan Porter welcomes Boston-based litigator Bob Peabody to the show to discuss the Department of Justice’s use of the False Claims Act to pursue civil actions in connection with CARES Act fraud. Programs established by the U.S. government to assist individuals and businesses impacted by the Covid pandemic have been the locus of a breathtaking volume of fraud, with some estimates reaching to over $200 billion in fraudulent disbursements. 

During the early days of the pandemic, the government prioritized access to funds over program design and rigor, which quickly injected over $2 trillion of much needed money into the economy but also introduced the perfect conditions for fraudsters to submit phony applications. As the pandemic subsided, the Department of Justice has ramped up efforts to identify fraud and recover funds—and one its most important tools has been the False Claims Act.

Jonathan and Bob explore why a civil remedy is being applied to cases where there is blatantly criminal behavior and how whistleblowers and data miners play an important role in bringing Covid fraud to light. The conversation also discusses conduct that is less blatantly criminal or not criminal at all and how FCA works in these instances, including the concept of “reckless disregard” and how it serves as a means for prosecutors to work around the FCA’s scienter requirement.

Jonathan and Bob also address how FCA liability can emerge due to conduct unrelated to the loan application process per se. They recount an instance where allegations of Medicaid fraud—a matter that led to a settlement—boomeranged into a massive FCA claim due to the representations made by the lender while drawing down Covid relief funds that were initially forgiven by the government. 

Finally, the conversation addresses financial institutions’ exposure to FCA liability under the theory that they should have exercised greater diligence in making loans. Recent cases highlight how DOJ is pursuing not just borrowers, but lenders as well, especially via qui tam litigation against both the institution and executives, demonstrating that the book is still open on Covid-related fraud enforcement. 

Jonathan Porter | 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.

Robert Peabody | Full Biography

Based in Boston, Bob represents companies and management in healthcare, securities, tax, labor and corporate fraud matters. Much of his practice is focused on the healthcare industry—including allegations of illegal kickbacks, off-label marketing matters, and alleged Medicare and Medicaid fraud, among other regulatory enforcement matters. He also handles a range of financial and commercial fraud matters investigated by the Departments of Justice, Treasury, and Health and Human Services, as well as the Center for Medicare and Medicaid Services. Bob also represents financial executives facing SEC scrutiny, including cases involving insider trading, accounting fraud, and market manipulation. Bob also has represented colleges and universities in internal investigations involving Title IX allegations.

Before transitioning to white collar defense and internal investigations, Bob served as a state and federal prosecutor for 15 years. He has broad familiarity with the state and federal courts, having prosecuted more than 60 jury trials, as well as having made numerous arguments before the First Circuit Court of Appeals.

Host Jonathan Porter welcomes back to the show Husch Blackwell partner Rebecca Furdek and enlists the assistance of Steve Renau, the firm’s Head of Thought Leadership, for a fun-filled April Fools’ Day episode. Jonathan and Rebecca recount three stories involving False Claims Act-related violations or mishaps and ask Steve to choose the one that was fabricated or made up. How difficult will it be to distinguish between fiction and reality? You might find the answer to be surprising.

The episode highlights the role of storytelling in defending against FCA allegations. In many respects, FCA investigations and prosecutions concern dueling or conflicting narratives. Indeed, it is often a whistleblower’s story that launches these investigations, and being able to develop—and effectively tell—an evidence-based story that contradicts or complicates the whistleblower’s narrative can be key to resolving FCA-related challenges.

Jonathan Porter | 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.

Rebecca Furdek | Full Biography

A partner in Husch Blackwell’s Milwaukee office, Rebecca is a member of the firm’s White Collar, Internal Investigations & Compliance team and regularly helps clients navigate today’s regulatory and government enforcement landscape. Before joining Husch, Rebecca served as Counsel to the Solicitor at the U.S. Department of Labor, where she gained firsthand insight into federal agency rulemaking and administrative enforcement. Prior to her government service, Rebecca worked as an associate in the Washington, D.C. office of a global law firm, focusing on litigation and government enforcement, and began her legal career as a judicial law clerk at the U.S. District Court for the Northern District of Texas. During law school, she served as a law clerk with the U.S. Senate Judiciary Committee.

Host Jonathan Porter welcomes back to the show Husch Blackwell litigator Tanner Cook to discuss an assortment of recent False Claims Act-related legal and policy developments. A U.S. Supreme Court FCA decision, a rare FCA jury trial result, and a growing circuit court split—Episode 21 covers all of these developments and more.

The discussion begins with the February Supreme Court unanimous decision in Wisconsin Bell that clarified important concepts surrounding the definition of a claim under the FCA. While a victory for the whistleblower, the decision was a narrow one, leaving some important questions untouched, including the constitutionality of the FCA’s qui tam provisions. From there, the conversation pivots to a First Circuit decision in United States v. Regeneron Pharmaceuticals that reads into FCA enforcement a “but-for” causation standard, widening a circuit split on the causation issue. The episode then covers a big defense win for a Medicare Advantage plan accused of making reverse false claims. Finally, the episode discusses a new memorandum from Attorney General Pam Bondi that narrows FCA enforcement, before concluding with a discussion of the Supervalu trial and its implications for FCA enforcement.

Jonathan Porter | 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.

Tanner Cook | Full Biography

Based in St, Louis, Tanner is a member of Husch Blackwell’s Commercial Litigation group and focuses on consumer class actions, antitrust litigation, and multidistrict litigation. Tanner frequently takes the lead in drafting critical pretrial briefs, including dispositive motions and evidentiary challenges. In addition to his commercial litigation practice, Tanner regularly assists on white collar defense matters, especially in the False Claims Act context. Tanner has significant experience defending companies from qui tam whistleblower suits at every stage of the litigation process, combining his deep substantive knowledge of the law with creative defense strategies. Tanner served as law clerk at the U.S. District Court, Eastern District of Missouri, for Judge Sarah E. Pitlyk.

For Further Reading

Wisconsin Bell Inc. v. United States ex rel. Todd Heath, case number 23-1127, before the Supreme Court of the United States, Decided February 21, 2025.

Robert K. Blaisdell, Brian G. Flood, and Taylor White. “Beware of Offers Too Good to Be True: Recent Federal Lawsuit Highlights Kickback and False Claims Risks,” March 14, 2025.

Host Jonathan Porter welcomes to the show Michael Schrier, a Washington-based partner in Husch Blackwell’s Government Contracts practice, to discuss a recent executive order (EO) issued by President Donald Trump that could, if it survives legal scrutiny, introduce a new category of False Claims Act (FCA) liability to government contractors. 

Jonathan and Michael kick off the discussion with a brief overview of the historical context surrounding President Trump’s EO, including the Lyndon Johnson-era EO that it seeks to displace. For decades, federal contractors and subcontractors had to affirmatively ensure that employment practices are non-discriminatory against any person based on race, ethnicity, sex, national origin, or religion. Through executive action, the Trump administration has revoked this framework and created new requirements, including a prohibition against enforcing affirmative action in government contracts and certifications from contractors and grant recipients that they do not operate DE&I programs that violate federal anti-discrimination laws.

As Jonathan and Michael discuss, the new EO is not without its legal challenges. On February 21, 2025, a federal judge issued a 63-page memorandum opinion and a nationwide preliminary injunction prohibiting the federal government from enforcing some of the EO’s key provisions, offering temporary relief to contractors, grant recipients, and private employers who are concerned that they will be a target of administration efforts to search out and potentially prosecute “illegal DEI.”

How does this new EO—and the pending litigation attached to it—intersect with the FCA? Jonathan and Michael explore how the EO and its express reference to the FCA set in motion the potential for whistleblower claims pertaining to the operation of certain DE&I programs, but the court-imposed stay has created limbo as to the EO’s legality. The conversation turns to consider how contractors should approach new and existing federal government contracts in light of these developments, including the uneasy relationship between federal and state-level laws and contracts that could have contradictory requirements, setting up a Kafkaesque dilemma for compliance teams. 

Jonathan and Michael wrap up the conversation by exploring how the new EO complicates compliance with various other government contract requirements, some of which are statutory in nature, such as the Small Business Administration’s 8(a) program, a federal contracting and training program for small business owners who are socially and economically disadvantaged.

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.

Michael Schrier Biography

Full Biography

Michael represents federal contractors, grant recipients, and companies and institutions doing business with or having matters before the U.S. government across a diverse array of matters, including construction litigation and labor and employment law. His employment-related advice includes matters in connection with the Davis-Bacon Act, Service Contract Act, federal contractor Paid Sick Leave, federal contractor minimum wage, and OFCCP matters. Michael represents clients in Contract Disputes Act, Miller Act and breach of contract claims in federal and state trial and appellate courts and in bid protests before the U.S. Court of Federal Claims and U.S. Government Accountability Office. In addition, he advises clients on Federal Acquisition Regulation compliance, facilities and security clearances, False Claims Act, Buy American Act, and debarment/suspension matters.

Further Reading

Michael J. Schrier, Brian P. Waagner, Tracey O’Brien, and Catarina A. Colón. “Federal Court Issues Preliminary Injunction Enjoining Key Portions of Anti-DEI Executive Orders,” February 24, 2025.

Michael J. Schrier and Tracey O’Brien. “White House Revokes E.O. 11246, Targets DEI Programs Alleged to Violate Anti-Discrimination Laws,” January 23, 2025.

Host Jonathan Porter welcomes Abe Souza, a new member of Husch Blackwell’s White Collar, Internal Investigations, & Compliance team, to the podcast to discuss newly released Department of Justice data regarding qui tam litigation, as well as DOJ’s False Claims Act priorities and best practices for defusing FCA investigations. There was a record number of qui tam lawsuits filed in 2024, and while whistleblower filings hit an all-time high, DOJ’s recoveries and investigative resources have remained mostly flat, leading to a crucial question—how does DOJ decide which qui tams to pursue?

Jonathan and Abe use their experience serving within DOJ to shed light on how DOJ prioritizes FCA investigations. The discussion touches on the time-management aspects of an Assistant U.S. Attorney’s job and how these time limitations force AUSAs to focus on cases where there is a potential to secure a significant settlement or judgment and where the underlying allegations detail egregious conduct accompanied by strong evidence that can be marshaled at trial. Additionally, DOJ is more apt to end an investigation when there is some evidence of a violation, but the violation was immaterial to the government’s payment decision.

The conversation then shifts to explore how qui tam complaints make their way through the legal system and how defendants can best defend these types of investigations. There is often a substantial degree of investigative activity already ongoing when defendants learn of an FCA investigation, usually via a civil investigative demand. Jonathan and Abe discuss the importance of the tone of initial and subsequent communications between defendants and the government, as they can play an important role in whether the government ultimately elects to join the lawsuit. While not dispositive, declinations are hugely influential, as many whistleblowers will voluntarily dismiss FCA actions if the government decides not to join the suit. Jonathan and Abe explain the inflection points of qui tam litigation and how DOJ approaches declination and dismissal requests based on how the case is proceeding.

Jonathan and Abe also cover what happens in qui tam cases after DOJ declines to join a lawsuit and how defendants can manage litigation risk in these instances.

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.

Abraham J. Souza Biography

Full Biography

Abe regularly represents clients embroiled in internal and government investigations, as well as in government enforcement actions. Abe also represents clients in complex business disputes and commercial litigation matters, including those involving antitrust and class action claims. Prior to joining Husch Blackwell, Abe served for nearly five years as an Assistant U.S. Attorney in the Northern District of Illinois where he worked directly with FBI agents and other investigators and served as a first-chair trial lawyer. Abe began his legal career as a law clerk for the Honorable Joan Humphrey Lefkow of the U.S. District Court for the Northern District of Illinois.