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A Conversation with Civil False Claims and Qui Tam Actions Author Douglas Baruch

July 06, 2020

Partner Doug Baruch recently co-authored the Fifth Edition of Civil False Claims and Qui Tam Actions published by Wolters Kluwer. Doug shares his thoughts on the most significant takeaways from the treatise and why the updated resource is important for practitioners in the False Claims Act (FCA) space.

With all of the FCA information and commentary being generated these days, why should readers consult this particular treatise? 

Many practitioners comment on the topics of the day. Few provide a comprehensive analysis of the FCA that puts current litigation and enforcement priorities in their proper perspective. The original version of this treatise dates back to 1993 and, properly so, was forward looking in terms of the then-recent 1986 amendments and the FCA and qui tam law that was slowly developing on those topics. Subsequent updates and editions relied on the same format, building on the law as it developed and factoring in the 2009 and 2010 amendments. 

The Fifth Edition changes the orientation. It focuses first and foremost on the current FCA law and procedure, but also provides extensive analysis of the key historical underpinnings for the FCA’s unique statutory liability, qui tam, and procedural provisions. This comprehensive approach allows readers to get the answers they need, but also the background necessary to identify and understand issues in-depth and to apply past arguments to current trends.

Why is this resource important for practitioners now?

FCA enforcement and litigation is constantly evolving. Enforcement priorities change, government investigation and settlement practices often vary by jurisdiction, and key aspects of the law remain unsettled and often in conflict from circuit to circuit. This treatise not only monitors and reports on these changes, but provides important historical perspectives and describes the way FCA investigations and litigation actually play out. While FCA enforcement – and particularly qui tam cases – have continued to increase year over year, spreading into all facets of business, the massive federal stimulus and injection of funds into the economy in recent months, associated with the response to the COVID-19 pandemic, is certain to lead to even more investigations and enforcement in this space. The treatise covers the full gamut of FCA law and procedure that will assist practitioners with today’s FCA practice realities.

To which industries and practice areas does this treatise pertain?

The FCA the federal government's civil weapon of choice in fighting fraud, waste, and abuse by companies doing business with the public sector. FCA cases arise in every area in which government money is spent, from oil and gas, education, computer, import/export, real estate, housing, construction, airports, and federally insured mortgage and student loans, and small businesses. Government spending on the COVID-19 response is certain to generate FCA cases as well. And, under the FCA’s whistleblower provisions, employees across all of these industries can and do bring anti-retaliation actions. 

Is there one case in particular that you highlight in the book with lessons that all practitioners need to understand?

Perhaps the most significant case in the book – in terms of modern FCA practice – is the US Supreme Court’s decision in Escobar. That decision, five years ago, has had an enormous impact on every aspect of FCA practice. It has opened the door to a new theory of FCA liability, which has led to many new qui tam cases in particular, while at the same time offering FCA defendants more opportunities to challenge the sufficiency of complaint allegations at early stages of litigation. The Escobar decision is discussed extensively in virtually every chapter of the book.

What are you hoping readers will take away from the treatise?

As the Supreme Court itself has observed, the False Claims Act is a flawed piece of legislation. Many of its provisions rely on ambiguous or internally inconsistent language, and the statute’s unique qui tam sections, which incentivize private parties to do the government’s bidding in fraud cases, have created challenges that are unlike those present in any other civil litigation. This treatise tackles these issues head on, and provides both law, analysis, and practical perspectives based on the authors’ decades of engagement in this space.