Senate to Consider Pared Down, But Still Unfavorable, Amendments to FCA

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Senator Chuck Grassley has sponsored a bill (S. 2428) that would amend the False Claims Act in several significant ways that are unfavorable to defendants. On October 28, 2021, the Senate Judiciary Committee voted to refer the False Claims Amendments Act of 2021 to the Senate for a full vote. The current version of the FCAA contains several important changes from its predecessor:

  • It no longer shifts the burden of proof for materiality to defendants by requiring them to “rebut” an initial materiality showing with “clear and convincing evidence.”
  • It no longer contains a provision that would require defendants seeking discovery from the government in non-intervened cases to pay the government’s costs and attorneys’ fees for responding under certain circumstances.
  • It may make it more difficult for defendants to take advantage of the government’s dismissal authority, by heightening the dismissal standard.
  • It would only apply its changes to FCA cases prospectively.

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