We begin our 2020 review with what has been foremost on so many minds this year—the COVID-19 pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorized more than $2 trillion in COVID-19 relief. The acceptance of relief funds under the CARES Act, however, raises potential enforcement risks for aid recipients. We explore those risks in various sectors of the U.S. economy.
Next, we turn to the aftermath of the 2016 Escobar decision, and the continued case law development of what the Supreme Court emphasized is the Act’s “demanding” and “rigorous” materiality requirement. This year, lower courts continued to develop standards to determine what types of misrepresentations or omissions are sufficiently material to justify the imposition of treble damages and penalties under the FCA. We discuss the evolving understanding of this important opinion.
We next focus on the financial institution sector, which has seen a slowdown in reliance on the FCA to enforce Federal Housing Administration regulations. At the same time, however, financial institutions have distributed hundreds of billions of dollars in loans under the CARES Act, creating new FCA risks for lenders. We explore the scope of those risks to businesses participating in these lending programs.
In addition, 2020 saw a deepening circuit split over a long-disputed question of whether and when a scientific, clinical, or medical opinion can be “false” and thus serve as a predicate for FCA liability. We explore recent decisions by the Third and Ninth Circuits, which mark a sharp contrast against the Eleventh Circuit’s 2019 United States v. AseraCare Inc. decision and we look ahead to the ramifications these decisions could have across industries, particularly if the Supreme Court grants the petition for a writ of certiorari filed in the Third Circuit case.
We next turn to the Seventh Circuit, which introduced a third standard to be applied when DOJ seeks to dismiss a suit filed under the qui tam provisions of the FCA. Until recently, courts had lined up in one of two camps on the government’s dismissal power under Section 3730(c)(2)(A) of the Act. We consider the implications of this new approach, which affords the government a largely unfettered right to intervene and dismiss a qui tam complaint over the relator’s objection during the early stages of litigation.
Finally, we look to the higher education sector, where DOJ has used the FCA for years to enforce the so-called “incentive payment ban,” prohibiting institutions that receive federal student financial aid funds from paying incentive compensation for student recruitment services. We discuss the changing regulatory landscape, as various safe harbors have come and gone. In particular, we consider recent FCA settlements and congressional attention, which have raised questions about the continued viability of the “bundled services” exception.