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: Virginia Qui Tam Law

The First Shots in the Battle Over the Retroactivity Provisions of the New False Claims Act

By Zachary A. Kitts

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As previously discussed on this blog, revamped federal False Claims Act became law on May 21, 2009. While the changes made by the Fraud Enforcement and Recovery Act of 2009 do not go as far those in the still-pending FCA Corrections Act, the changes represent a significant increase in the fraud-fighting power of the government and private qui tam relators.

In addition to major revisions of the seven liability provisions found in sec. 3729, the new statute specifically takes aim at the United States Supreme Court's decision last year in Allison Engine in two ways. First, the new False Claims Act expressly does away with the Supreme Court's interpretation of the old 3729(a)(2); and second, Congress made the provisions of 31 U.S.C. 3729(a)(1)(B) retroactive to June 7, 2008--i.e., the day the Allison Engine opinion was announced.

The retroactivity provisions of the new FCA are certainly going to be challenged, and it is only fitting that the first shots fired in this coming battle arise from the Allison Engine case itself. Today, the Department of Justice filed its statement of interest in support of the relator in Allison Engine.

More battles are on the horizon--among the most interesting will be the battle concerning retention of overpayments. More on that to follow.

Full post as published by Virginia Qui Tam Law on August 12, 2009 (boomark / email).