Bass, Berry & Sims attorney Matt Curley was one of several attorneys quoted in a Law360 article examining an Eleventh Circuit appeal considering the constitutionality of the qui tam provisions of the False Claims Act (FCA).
The article quoted several attorneys who are closely following the case to get their impressions and insight about the potential decision. Speaking about the Eleventh Circuit’s likely approach and the potential for ultimate consideration of the issue by the Supreme Court, Matt said he expects “a very active appellate panel to probe the merits of the constitutional challenge, regardless of which way the judges are leaning.” He added, “The parties to the appeal are not only making their arguments to the Eleventh Circuit panel hearing the case, but also positioning the issues for eventual consideration by the Supreme Court,” with three Supreme Court Justices already having expressed concern about constitutionality of the FCA qui tam provisions in prior opinions.
Additionally, Matt explained “Appellate courts generally proceed with caution when considering the constitutionality of a federal statute. But, given its current makeup, the Eleventh Circuit is certainly a favorable jurisdiction in which to advance the arguments in favor of striking down the FCA’s qui tam provision.”
While there is a potential for the FCA’s qui tam provisions to be struck down entirely, Matt noted that “DOJ would have a pretty quick fix at the ready and would likely roll out a whistleblower program that would continue to financially incentivize whistleblowers to bring potential FCA violations to its attention.”
The full article, “FCA Bar Eager To Scrutinize 11th Circ. Qui Tam Debate,” was published by Law360 Healthcare Authority on December 9 and is available online (subscription required).