Government Program Fraud, False Claims Act & Qui Tam Litigation

With the passage of many pandemic-response and -relief programs, and the related increase in the number of companies doing business with the government, the risk that individuals and organizations may find themselves in the government’s crosshairs has grown tremendously. The government has taken significant steps to police all pandemic-related government programs, including appointing special inspectors general and forming committees and task forces to engage in rigorous oversight of the distribution and use of government funds. And nearly every U.S. Attorney’s Office, along with the U.S. Department of Justice (DOJ), the U.S. Department of the Treasury, and the heads of various agencies, including the Small Business Administration (SBA) and the U.S. Department of Health and Human Services (HHS), have publicly announced their commitment and dedication of resources to identify fraud related to pandemic-relief programs, including the creation and promotion of whistleblower hotlines.

Practically speaking, this means that all individuals and organizations participating in these various programs, or otherwise doing business with the government, are at risk of heightened government scrutiny. This includes individuals and organizations across diverse industries that pivoted to producing essential products or providing essential services funded by the government, or are participating in relief programs and are not accustomed to doing business, directly or indirectly, with the government. Consequently, it is critical to have robust procedures in place to mitigate the related risks and to be in a strong position to address and defend against allegations of wrongdoing effectively and efficiently.

Our Fraud Response Team is particularly helpful for clients that participated in pandemic-response and -relief programs. We have extensive experience helping clients in myriad industries identify, assess, and mitigate the risks of potential liability based on alleged government program fraud and FCA violations. Should a client find itself in the government’s crosshairs, our Fraud Response Team is prepared to jump into action,  provide the strategic guidance needed to navigate these complex investigations, and present rigorous legal and factual defenses, as well as comprehensive and efficient solutions for all aspects of a client’s business affected by these significant matters.

All the attorneys on our Fraud Response Team have a thorough understanding of the intricacies of government program fraud matters, the FCA, and related government investigations and litigation, including qui tam litigation filed by whistleblowers asserting FCA claims on the government’s behalf. Our extensive experience navigating complex—often multi-front—government investigations allows us to develop strategic and coordinated approaches to achieve favorable and efficient outcomes for clients.

Leveraging our deep experience as defense lawyers and prosecutors in these types of matters, our Fraud Response Team provides clients with the guidance that enables them to assert strong defenses, while also addressing the many related issues impacting their businesses.

Leaders of our Fraud Response Team include several former government lawyers who have significant experience investigating and prosecuting fraud matters, and who offer an invaluable perspective on how the government and whistleblowers approach civil and criminal fraud, FCA claims, and qui tam matters. Their unique insider’s perspective and understanding is of tremendous benefit to clients and allows them to develop highly effective strategies to protect clients’ interests in these types of matters. They are often able to persuade the government to decline prosecution or to issue declinations of intervention in connection with FCA qui tam complaints. Where charges and claims are unavoidable, our attorneys employ targeted and cost-effective strategies aimed at defeating the charges or claims at the early stages of litigation. Where pre-trial dismissals are not possible, they conduct highly effective discovery and pre-trial motion practice and are prepared to vigorously defend clients at trial. If a pre-trial resolution is the client’s preferred path, our attorneys are adept at negotiating and securing favorable dispositions that afford clients the broadest possible protection from future government actions, avoid exclusion from participation in government programs, and minimize any attendant reputational harm.

Our Fraud Response Team includes members from several different practice areas with particularized subject matter experience regarding the many diverse issues that often arise in connection with matters involving allegations of government program fraud and FCA violations. Our cross-practice approach allows us to work together seamlessly to spring into action quickly and efficiently to address the unique and varied challenges clients face throughout the entire life cycle of these types of matters in a coordinated manner. We achieve optimal results for clients and provide them with comprehensive solutions by utilizing a team consisting of members of the following highly acclaimed Winston practice groups: Government Investigations, Enforcement, and Compliance; Antitrust & Competition; Appellate & Critical Motions; Government Contracts; Health Care and Life Sciences Regulatory Litigation and Investigations; Labor & Employment; Privacy & Data Security; Securities Litigation; and Tax.

With the expansion of government-funded programs, there are heightened risks of government program fraud and FCA investigations and litigations impacting an array of industries, including consumer products, defense, education, financial services, health care and life sciences, insurance, manufacturing and logistics, media, and technology. Many companies in these industries are not accustomed to receiving government funds or doing business directly or indirectly with the government and, therefore, must be particularly vigilant in ensuring that they understand and mitigate these risks with a specific focus on the implications for the industry in which they operate.

With the benefit of our cross-practice team of attorneys, we provide industry-specific guidance to our clients to help them reduce the risks of becoming the subject of government action or a whistleblower complaint. We conduct cost-effective reviews of client operations to identify and address areas of vulnerability. We also assist clients with developing, implementing, and enhancing controls designed to prevent wrongdoing and ensure compliance with the evolving and wide-ranging requirements that impact our clients’ business relationships with federal, state, and local governments.

Health Care & Life Sciences Industries

From the fiscal year 2010 to the end of fiscal year 2022, health care-related actions accounted for more than US$34B of the approximately US$48B recovered by the DOJ in civil settlements and judgments in cases involving fraud against the government and related false claims. We represent companies and individuals in the health care, life sciences, pharmaceutical, consulting, and insurance industries, where fraud and false claims investigations and litigation and related qui tam actions are particularly prevalent. Companies in these sectors are uniquely affected by investigations and litigation that can be brought based on alleged violations of the FCA, the Anti-Kickback Statute, the Medicare Secondary Payer Act, and other regulations under government-funded health insurance programs, including Medicare and Medicaid. With an integrated approach, our former prosecutors and government lawyers complement teams of cross-practice attorneys in our health care-related practices, allowing us to see the entire field in health care-related matters and address the varying issues that are important to our clients and their operations.

Financial Services & Other Industries

The FCA and related state statutes, as well as fraud-based criminal laws, are also used to redress unlawful schemes to obtain government funds and property under a wide variety of government contracts and government programs, including those involving federally insured loans and mortgages, as well as government grants, subsidies, disaster assistance, and other support. Clients operating in the consumer products, defense, education, financial services, insurance, manufacturing and logistics, media, and technology sectors, among others, face tremendous government scrutiny and are particularly vulnerable to whistleblowers from within the organization, as well as from competitors, vendors, and others familiar with the organization’s relationships with the government. Armed with industry-specific knowledge, we provide thorough and effective representation of clients facing these types of criminal and civil investigations and litigation. Our understanding of the unique risks and challenges faced by organizations operating within specific industries allows us to develop particularly effective strategic approaches to address both the legal and business issues faced by our clients in these matters.