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Johnny, rosin up your bow and play your fiddle hard
’Cause Hell’s broke loose in Georgia and the Devil deals the cards
And if you win, you get this shiny fiddle made of gold
But if you lose the Devil gets your soul
~ The Charlie Daniels Band

Some might say there’s little difference between dealing with the devil and being a federal contractor. And for the unwary or unprepared, that may not be far off. Federal contracting comes with a litany of “fine print” that would make “Old Scratch” proud. However, as most savvy contractors recognize, it’s all hiding in plain sight, with the devil in the details. Take, for example, the cybersecurity requirements found in the Federal Acquisition Regulations (FAR) at 52.204-21 and the Department of Defense (DoD) FAR Supplement (DFARS) at 252.204-7012, -7019, and -7020. These requirements have been the topic of countless articles, trainings, webinars, whole conferences, etc., so it is surprising while simultaneously not surprising that they form the basis of a federal False Claims Act (FCA) claim the Department of Justice (DOJ) recently filed in its complaint in intervention.Continue Reading DOJ Went Down to Georgia: Lessons Learned from Recent Cybersecurity Enforcement Actions

On August 1, 2024, the US Department of Justice (DOJ) Criminal Division introduced its Corporate Whistleblower Awards Pilot Program (Program), which, like a modern-day Western posse, aims to bring justice to the wild frontier of corporate America. The DOJ is enticing anyone willing to saddle up and provide information on corporate outlaws—i.e., those involved in corruption, financial crimes, foreign corruption, bribery, and/or healthcare fraud. In sum, the Program closes the gaps left by existing whistleblower programs and bolsters the DOJ’s efforts to combat corporate crime. For those who decide to ride with it, the DOJ is promising substantial financial rewards—up to 30 percent of the loot recovered from those outlaws—to insiders, whistleblowers, and relators who come forward with information leading to significant criminal or civil forfeiture actions. As the Program unfolds over its three-year pilot period, it will—or should—be closely watched by False Claims Act defense counsel, plaintiff’s counsel, corporate leaders, and potential whistleblowers alike. If successful, it could permanently expand whistleblower incentives and further embolden an already aggressive DOJ (as if more encouragement were needed), signaling a new frontier in corporate governance and accountability in the United States.Continue Reading A New Frontier in Corporate Accountability: The DOJ’s Corporate Whistleblower Awards Pilot Program

“Now, the next part is very important…”

As scrutiny of domestic preference requirements increases in the wake of the Biden Administration’s Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers, the time is now for contractors to brush up on those requirements, examine supply chains to identify non-domestic content, and implement internal policies and procedures to ensure they are compliant with the domestic preference rules applicable to their contracts. On May 20, 2021, the US Attorney’s Office for the Eastern District of Pennsylvania announced a settlement under which a contractor agreed to pay $54,983 and implement “enhanced compliance measures” to resolve claims arising from its use of Chinese-made parts during a fire alarm installation and renovation project at Amtrak’s 30th Street Station in Philadelphia, PA. While the settlement amount is relatively minimal, the settlement is remarkable in that it telegraphs that funding agencies, along with the Department of Justice (DOJ), are willing to go to great lengths to be a nightmare for suppliers that do not adhere to the “Buy America” statutes and regulations.Continue Reading I Will Find You: DOJ Uses Its Particular Set of Skills to Enforce Domestic Preference Rules

In United States ex rel. Silver v. Omnicare, Inc., et al. (D.N.J. No. 11-cv-01326), a whistleblower relator consistently alleged that certain pharmaceutical service providers have engaged in an illegal kickback arrangement and defrauded the government by offering unreasonably low prices to nursing homes for Medicare Part A patients’ prescription drugs in exchange for the opportunity to provide the same drugs at much higher costs to the nursing homes’ Medicaid and Medicare Part D patients for reimbursement. In a recent Order, the federal district court in New Jersey revived previously dismissed claims and permitted the relator to file a new, and fourth, amended complaint that asserts a new theory of liability to buttress the core kickback scheme allegations. The new complaint asserts that prescription drug event (PDE) data and enrollee encounter data are “claims for payment” under the False Claims Act (FCA)—and that even accurate PDE data can be a “false claim” under the FCA in cases where a pharmacy is alleged to pay kickbacks to its customers.
Continue Reading How the Truth Is False: Accurate Prescription Drug Event Data Can Trigger False Claims Act Liability