Insights

Washington – June 24, 2024: Crowell & Moring has been recommended in eight practice areas in the 17th edition of the Legal 500 United States. In addition, partner Daniel Forman, co-chair of the firm’s Government Contracts Group, has been named to the Legal 500’s “Hall of Fame” for Government Contracts.

Judge Kathryn Kimball Mizelle of the District Court for the Middle District of Florida recently declared the False Claims Act qui tam provisions unconstitutional in U.S. ex rel. Zafirov v. Fla. Med. Assocs., LLC, -- F.Supp.3d --, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024), turning up the heat on a simmering constitutional fight that is increasingly likely to reach the Supreme Court in the next few years. Judge Mizelle's decision was the first to strike down the FCA qui tam provisions, but not the first to consider the issue. Arguments challenging the constitutionality of the qui tam provisions proliferated after Justice Thomas indicated some doubt about the qui tam device in his dissent in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). But every other judge to consider the issue has upheld the constitutionality of the qui tam provisions.

In a novel False Claims Act (FCA) ruling, on September 30, 2024, Judge Kathryn Kimball Mizelle of the District Court for the Middle District of Florida upended decades of FCA jurisprudence in declaring the qui tam provisions of the FCA unconstitutional in U.S. ex rel. Zafirov v. Florida Medical Associates, LLC, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024). This decision follows Justice Thomas’ dissent in the recent Supreme Court decision, U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), where he posited, “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” While Justice Thomas’ implicit constitutional challenge was not entirely new to FCA practitioners, including it in his Polansky dissent, with Justices Kavanaugh and Barrett in a concurring opinion noting their agreement that the Court should consider the constitutional questions in an appropriate case, swung wide open a door of opportunity for defendants and their counsel to attempt to dismiss FCA qui tam suits on constitutional grounds. Judge Mizelle’s decision in Zafirov is the first of its kind to actually dismiss a qui tam suit on constitutional grounds, and will likely lead to an avalanche of similar motions in nearly every non-intervened lawsuit brought by a relator.

On August 8, 2024, the U.S. Attorney’s Office for the Central District of California announced a $6.3 million False Claims Act settlement with West Coast Dental Administrative Services LLC (formerly West Coast Dental Services Inc.) and its founders and former owners due to seven improper second-draw Paycheck Protection Program loans received by West Coast Dental and affiliated dental offices. 

If your company receives any funding from the federal government, you’d better buckle your seat belt. You may be in for a very bumpy—and costly— litigation ride.

Crowell & Moring is pleased to announce the launch of our Government Contracts Breakfast Series. All of the sessions will be held in Northern Virginia and focus on issues most important to government contractors. Our second session is described below.

With historic levels of federal funding set to flow to state and local projects aimed at improving the nation’s roads, airports, railroads, and other transportations systems, it has never been more important for contractors to understand the requirements of the U.S. Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) program.

In recent years, there has been a steady rise in the number of lawsuits brought under the False Claims Act (FCA) alleging that importers have concealed obligations to pay duties to U.S. Customs and Border Protection. The increase in the number of qui tam suits filed by whistleblowers, combined with the current administration’s protectionist policies, suggests that U.S. importers could face increased FCA risks for years to come. 

In this episode, Steve Byers, Jason Crawford, and Agustin Orozco discuss the intersection between False Claims Act investigations and parallel criminal proceedings. "Let's Talk FCA" is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

In this episode, Jason Crawford, Agustin Orozco, and Erin Rankin look back at one of the more noteworthy settlements of 2023—the $377M settlement by Booz Allen Hamilton to resolve allegations arising out of the company’s purported non-compliance with Cost Accounting Standards. "Let's Talk FCA" is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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